# Petition for Writ and Appendix — Butler v. Federal Aviation Administration > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0631%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ and Appendix - **Published:** January 1, 2005 - **Citation:** 544 U.S. 1027 ## Text Supreme Court of the Cited States . DALLAS E. BUTLER, JEANNIE C. DELAMOS, ALAN J. DESA, TOM GAMBLE, WOODROW M. HASSINGER, RUDY MACK, SR., JOE R. MCCABE, PHILIP B. NASH, MICHAEL L. OKSNER, WILLIAM SIEGEL, PAUL TURNER III, AND ARTHUR B. WARD, Petitioners, FEDERAL AVIATION ADMINISTRATION, AND UNITED STATES OF AMERICA, Respondents. S ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT S PETITION FOR WRIT OF CERTIORARI WITH APPENDIX S Anthony P. X. Bothwell Counsel of Record LAW OFFICES OF ANTHONY P. X. BOTHWELL 350 Bay Street Suite 100 PMB 314 San Francisco, California 94133 (415) 370-9571 Counsel for Petitioners THE LEX GROUP®*© ¢ 1750 K Street, NW @ Suite 475 ¢ Washington, DC 20006 (202) 955-0001 @ (800) 815-3791 @ Fax (202) 955-0022 ¢ www.thelexgroupdc.com QUESTIONS PRESENTED Whether a regulatory agency decision, based on falsified data, is inherently arbitrary and fails to meet the substantial evidence test. Whether a lower court judgment, deferring to a regulatory agency's misrepresentation of both the factual record and the nature of the cause of action, should be reversed. PARTIES TO THE PROCEEDING The parties to this proceeding are identified in the caption of the case. No corporation is a party to this case. TABLE OF CONTENTS Page QUESTIONS PRESENTED ..........c.csccscscscrossssssscessesesececesssessncsoees i PARTIES TO-THE PROCEEDING. ...........ccccsssscssssssenssencnccseseres ii TABLE OF QCONTENTSS ...2.2000.0:csassassesssosscscsconsssecccssesessseneseneseese iii TABLE OF AUTHORITIES...............ccssssscscssscscsececseresesosssssassrsses Vv CRPIINIOIN BELOW, nsccsccssecsssscssassscsnssessessessancsssnnasssssanasincostnassontia 1 TUTTI CTI, neccncsesnsssnsnecesssosssisosbssnoncnsensssasnsasnscsesosussenstineneenens 2 RELEVANT STATUTES AND REGULATIONG...........eeeseee 2 WHAT 35 SOUGIAP oanccccncsscorsasesascosnasnsnsosonsnsesisnesssenenaiasesenoonese 8 STATEMENT OF THE CASE.........-css-secscscscssscseosssssosesesesnsnsnsaesen 9 FACTS MATERIAL TO QUESTIONS PRESENTED .............. 9 REASONS FOR GRANTING THE WRIT........cccsceseeeseeeseeeees 11 I. A regulatory agency decision, based on falsified data, is inherently arbitrary and fails to meet the substantial evidence test ..........scsssscsseseseeneees 11 iv Il. A lower court judgment, deferring to a regulatory agency's misrepresentation of both the factual record and the nature of the cause of action, should be reversed ................:0sssese000e CAO EO ccesncnpcncctnnsisasienanienecepennnnniennscannminiioneiaingnssnnsnssmmentunie APPENDIX TABLE OF AUTHORITIES Page(s) Cases: Abbott Laboratories v. Gardner, ee Re A GIT Piacectitsnctinnnensnnntosnsinnnsansitenniiastiniitsaniins 14 Chlorine Chemistry Council v. E.P.A., BOG BBG TABS CI, Cie, FD) cccccsssorsccsccscsssccsisscesnesansss 11 Lincoln v. Vigil, I FB TR Ce artcnsececnvonesanscsieissnerssssnsosiesainsenininasniesi 12 Padula v. Webster, BE BA BF CIA. Cae. TI) oc sscrssccrccssisacnsasnsssesasonsnosasens 12 Steenholdt v. F.A.A., BER PE GRD CK. Cie, Fp ssccttisssinincnssinorsesssarascsercescas 11 Tozzi v. U.S. Dept. of Health and Human Services, BF a Cin Che PE Pi trcnenineniacnsscssanssesnsnncecenntes 14 U.S. v. Nixon, irs cieintieinnncetnntnintitriisaiianiiansininntncesiasesien 12 U.S. Air Tour Ass'n v. FAA, Be Re CR, Cie, FD esrccentscsennescissanesionnascnrienats 14 Yetman v. Garvey, Br eG CFA GRE. BI) ccericectesscnsnnsanconmnnscnnncinsnesioniin 13 Statutes: I Re I asst dlessercliintiedincinkeistiesedsaromsesincensdinescavias 7, 11,14 NI I eter ticuib bei veeictnpsistatbdvaddsicasachcsadeseiestinckiassecaien: 2 a nh I icc cctncssnceicatapsseindnhins Sspnasenasioirchinddasdcanasa, 7 Pes CINE isc hcsselisceiciasasuspbncincictbivestcadsionitdapdniniasacescamcatacace 5 ee I ies is anasetardisnotansainsdacenieininsildcinconcciosinas 3,12 Oe OO I ieee cnicieaiccanecabeatsatigcnslasalabarncins passim sin «an dS ce a a TATRA ROE 3 a Ie OE cesacisiiiahslintrbassisisieigidadictinstas duazarcsaiasen 2,9 Information Quality Act (Section 515(a) of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. No. 106-554; H.R. POPU ieisisisstbchennasats asad dabinbiaidiaadadibsoriuindabebioniacdeises coins 4,12 Office of Management and Budget, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (Republication; 67 Fed. Reg. in Oy DU. By DINE snscacensnssncntnngnsnnisiasonansenntninnntonssen 5, 12 SN St ASR BEE EE eh ele = tt Rule: U.S. Sup. Ct. R. 10(c) Regulation: 14 C.F.R. § 121.383(c) No. In the Supreme Court of the United States DALLAS E. BUTLER, JEANNIE C. DE LAMOS, ALAN J. DESA, TOM GAMBLE, WOODROW M. HASSINGER, RUDY MACK, SR., JOE R. MCCABE, PHILIP B. NASH, MICHAEL L. OKSNER, WILLIAM SIEGEL, PAUL TURNER III, AND ARTHUR B. WARD, Petitioners, V. FEDERAL AVIATION ADMINISTRATION, AND UNITED STATES OF AMERICA, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Dallas E. Butler et al., the petitioners, respectfully request a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit. OPINION BELOW The September 24, 2004 Judgment of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circ. no. 03-1386) is reproduced in the Appendix at page la. The December 14, 2005 Order of the United States Court of Appeals for the District of Columbia Circuit denying the petitioners' timely request for renearing and request for rehearing en banc is reproduced in the Appendix at page 28a. JURISDICTION The Federal Aviation Administration executed its Denial of Exemption on October 6, 2003 (reproduced in the Appendix at page 3a). The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit was invoked pursuant to 49 U.S.C. § 46110(a). The jurisdiction of this Court is invoked pursuant to 28 US.C. § 1254 and Supreme Court Rule 10(c), inasmuch as the United States Court of Appeals for the District of Columbia Circuit has decided an important question of federal law that has not been, but should be, settled by this Court. RELEVANT STATUTES AND REGULATIONS 14 C.F.R. § 121.383(c) provides: "No certificate holder may use the services of any person as a pilot on an airplane engaged in operations under this part if that person has reached his 60th birthday. No person may serve as a pilot on an airplane engaged in operations under this part if that person has reached his 60th birthday." 49 U.S.C. § 44701(f) provides: "The Administrator may grant an exemption from a requirement of a regulation prescribed under subsection (a) or (b) of this section or any of sections 44702-44716 of this title if the Administrator finds the exemption is in the public interest." 49 U.S.C. § 44703 provides: "The Administrator of the Federal Aviation Administration shall issue an airman certificate to an individual when the Administrator finds, after investigation, that the individual is qualified for, and physically able to perform the duties related to, the position to be authorized by the certificate." 49 U.S.C. § 40101(a) provides: "In carrying out subpart II of this part and those provisions of subpart IV applicable in carrying out subpart II, the Secretary of Transportation shall consider the following matters, among others, as being in the public interest and consistent with public convenience and necessity: (1) assigning and maintaining safety as the highest priority in air commerce. *** (4) the availability of a variety of adequate, economic, efficient, and low-priced services without unreasonable discrimination or unfair or deceptive practices. (5) coordinating transportation by, and improving relations among, air carriers, and encouraging fair wages and working conditions. *** (B) to encourage efficient and well-managed air carriers to earn adequate profits and attract capital, considering any material differences between interstate air transportation and foreign air transportation. zeke (9) preventing unfair, deceptive, predatory, or anticompetitive practices in air transportation. xk (15) strengthening the competitive position of air carriers to at least ensure equality with foreign air carriers, including the attainment of the opportunity for air carriers to maintain and increase their profitability in foreign air transportation. (16) ensuring that consumers in all regions of the United States, including those in small communities and rural and remote areas, have access to affordable, regularly scheduled air service." The Information Quality Act (Section 515(a) of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. No. 106-554; H.R. 5658)) provides: "The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement. issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and NA i 5 provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act." The Paperwork Reduction Act, 44 U.S.C. § 3501, provides: "The purposes of this subchapter are to... (2) ensure the greatest possible public benefit from and maximize the utility of information created, collected, maintained, used, shared and disseminated by or for the Federal Government; eke (4) improve the quality and use of Federal information to strengthen decisionmaking, accountability, and openness in Government and society; eke (8) ensure that the creation, collection, maintenance, use, dissemination, and disposition of information by or for the Federal Government is consistent with applicable laws..." Office of Management and Budget, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (Republication; 67 Fed. Reg. 8452 et seq., Feb. 22, 2002) provide, in part: "These final guidelines implement section 515 of the Treasury and General Government Appropriations ct for Fiscal Year 2001 (Public Law 106-554; H.R. 5658). .... It is crucial that information Federal agencies disseminate meet thee guidelines. .... These guidelines apply to agencies subject to the Paperwork Reduction Act (44 U.S.C. chapter 35). Agencies are directed to develop information resources management procedures for reviewing and substantiating (by documentation or other means selected by the agency) the quality (including the objectivity, utility, and integrity) of information before it is disseminated. In addition, agencies are to _ establish administrative mechanisms allowing affected persons to seek and obtain, where appropriate, correction of information disseminated by the agency that does not comply with the OMB or agency “With regard to analysis of risks to human health, safety and the environment maintained or disseminated by the agencies, agencies shall either adopt or adapt the + ae principles applied by Congress in the e Drinking Water Act Amendments of ne (42 U.S.C. 300g-1(b)(3)(A) & (B)).' .... “Objectivity’ includes § whether disseminated information is being presented in an accurate, clear, complete, and unbiased manmer. This involves whether the information is presented within a proper context." Nadas icenaiens rh The Safe Drinking Water Act Amendments of 1996 (42 U.S.C. 300g-1(b)(3)) provide: "(A) Use of science in decisionmaking In carrying out this section, and, to the degree that an Agency action is based on science, the Administrator shall use— (i) the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and (ii) data collected by accepted methods or best available methods (if the reliability of the method and the nature of the decision justifies use of the data)." 5 U.S.C. § 706 provides: "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall — (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. "In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." WHAT IS SOUGHT The petitioners, pursuant to 49 U.S.C. § 44701(f), seek exemption from 14 C.F.R. § 121.383(c), the age 60 rule, which prohibits commercial airline pilots from flying beyond age 59. The Federal Aviation Administration, relying on intentionally falsified age-safety data, has maintained a rigid policy of denying all age exemption requests. The judgment of the United States Court of Appeals for the District of Columbia Circuit rested on two premises - both factually incorrect: (1) that the petitioners had provided no information about themselves, and (2) that the petitioners challenged the validity of the age 60 rule. The petitioners ask that their requests for exemption be considered on the merits. STATEMENT OF THE CASE The petitioners filed a petition with the Federal Aviation Administration ("the FAA," "the agency") on June 10, 2002, pursuant to 49 U.S.C. § 44701(f), requesting exemption from 14 C.F.R. § 121.383(c), the age 60 rule. The — petitioners subsequently filed three amendments to that petition, the last being filed on August 20, 2003. The Federal Aviation Administration on October 6, 2003 issued an order denying that petition. The petitioners, pursuant to 49 U.S.C. § 46110(a), petitioned the United States Circuit Court of Appeals for the District of Columbia, requesting judicial review of that order. The Court of Appeals issued a judgment on September 24, 2004, upholding the agency's decision. The petitioners on November 18, 2004 petitioned for rehearing and for rehearing en banc, and the Court of Appeals issued a decision on December 15, 2004 denying that request. The petitioners here petition the Supreme Court for a writ of certioran. FACTS MATERIAL TO QUESTIONS PRESENTED The 12 petitioners, both active and retired commercial airline pilots around age 60, petitioned the Federal Aviation Administration (the FAA," "the agency") for exemption from 14 C.F.R. § 121.383(c), a regulation that prohibits such pilots from flying beyond age 59. In petitioning the agency, they relied on 49 U.S.C. § 44701(f), which empowers the agency to grant such exemptions in the public interest. (Pet. 1-3; Pet. 3d Amend.") 1 Pet. 1-3 refers to pages 1 through 3 of the pilots' petition to the FAA. Pet. 3d Amend. refers to the third amendment to the pilots’ petition to the FAA. That petition and its amendments are reproduced in the Appendix at page 207a. 10 The pilots' petition to the FAA presented information regarding their qualifications, including the facts that they have unblemished medical and safety performance records; that they are far better qualified than recovering alcoholics, heart patients and other ill pilots often granted exemptions to fly; that their experience renders them better qualified than younger pilots to handle unexpected incidents and emergencies in flight; that they are ready and willing to continue fiying in the public interest; and that both they and the airlines' passengers suffer irreparable harm as a proximate result of an unwritten policy of the FAA automatically to deny all age exemption requests. (Pet. 1-3, 6-7.) Their petition to the agency also provided extensive documentation showing that the FAA for decades has misrepresented both the purpose of its no-exemptions policy and the data that purportedly justifies it. The petitioners' exhibits showed that a former FAA Administrator, two Federal Air Surgeons and other FAA officials privately have conceded that their enforcement of the age 60 rule never had anything to do with safety. (Pet. 95-56; Pet. Exh. EE, FF.2) This record showed further that the FAA has relied on falsified age-safety statistics to justify its policy of no age exemptions. (Pet. 23-36, 57-63; Pet. Exh. Q.) Exhibits presented with the pilots' petition to the FAA documented that FAA officials privately have conceded that the only reason for rigid enforcement of the rule was a supposed economic favor to certain airline interests. The record showed that favoritism initially was meant to benefit an executive who had lost a series of labor arbitrations over his company's age 60 retirement policy, ? Pet. Exh. EE, FF refers to exhibits EE and FF of the pilots' petition to the FAA. Exhibits to that petition, including internal FAA memoranda and hand-written documents, are provided in the record (D.C.Cir., J.A.A.). ee 11 and later was supposed to benefit airline executives who would find it administratively inconvenient to alter their retirement programs. (Pet. Exh. 10-17; Pet. Exh. B, C, J.) In fact, it is undisputed that the airline industry and airline unions increasingly are opposed to the FAA's inflexibility in grounding all the pilots on their 60th birthday. (Pet. 2d Amend.; Southwest Airlines amicus curiae brief.3) It also is undisputed that Europe, Japan, Australia and others around the world have recognized the fallacy of, and declined to imitate, the FAA's age policy. Pet. 69-70. In their petition to the FAA, the pilots did not challenge the legal validity of the age 60 rule, 14 C.F.R. § 121.383(c). Rather, they asked the agency to exercise its statutory authority, under 49 U.S.C. § 44701(f), to grant their request for exemption from the age 60 rule, in the public interest. (Pet. 2,5, 75-76.) REASONS FOR GRANTING THE WRIT I. A regulatory agency decision, based on falsified data, is inherently arbitrary and fails to meet the substantial evidence test. The Administrative Procedures Act, 5 U.S.C. § 706, provides that, in reviewing an agency action, the court shall "hold unlawful and set aside agency action, findings, and conclusions found to be... arbitrary, capricious, an abuse of discretion, or... unsupported by substantial evidence...." The measure of "substantial evidence" is found in judicially manageable standards. Steenholdt v. F.A.A., 314 F.3d 633, 638 (D.C. Cir. 2003). See also Chlorine Chemistry Council v. E.P.A., 206 F.3d 1286, 1290-91 (D.C. Cir. 2000). 3 Southwest Airlines amicus curiae brief being filed in support of this petition for certiorari. 12 Judicially manageable standards are to be found in regulations. Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). The FAA's use of concededly false age-safety data in its denial of the pilots' request for exemptions failed to comply with mandatory standards established in the Information Quality Act of 2000 (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. No. 106-554; H.R. 5658)). It also violated guidelines pursuant to those statutory standards (Office of Management and Budget, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication; 67 Fed. Reg. 5365 et seq., Feb. 5, 2002). The agency's impunity defies of the rule that, so long as a federal regulation exists, the Executive Branch is bound by it (U.S. v. Nixon, 418 U.S. 683, 695 (1974)). Even if the guidelines were not binding per se, nevertheless they supplied standards judicially manageable for the purpose of defining arbitrary and capricious conduct, abuse of agency discretion, and lack of substantial evidence. Judicially manageable standards also are to be found in statutes that circumscribe agency discretion. Lincoln v. Vigil, 508 U.S. 182, 193 (1993). Congress has ordered such standards in statutes that delimit FAA's discretion in deciding whether to grant the exemptions sought by the petitioners. Thus the agency must consider implications of safety foremost, but also effects on national defense, aviation economics and the international competitiveness of U.S.-based airlines. (49 U.S.C. § 40101(a).) 13 The FAA has been unable to refute the fact that multi-pilot crews, redundant pilot-copilot communication procedures, and modern cockpit technology, create a fail- safe system to prevent an accident even if the pilot, regardless of age, were to become incapacitated. (Pet. 41- 54.) Required simulator testing, frequent medical examinations, and constant monitoring of performance weed out potentially deficient pilots, regardless of age. Those who continue to fly airliners are a super-select population of extraordinarily fit and able individuals. The FAA has relied on distorted statistics which show that older pilots of small airplanes have a higher accident rate than younger pilots of large airliners. This methodologically false comparison is not valid, because small aircraft tend to have much higher accident rates than airliners, and the rates are not age-related. The agency long has been aware of deficiencies in age-safety data on which it has relied. Yetman v. Garvey, 261 F.3d 664, 677 (7th Cir. 2001). FAA officials quietly conceded flaws in data that the agency nevertheless relied on in its public statements and decisions. The experience of other major air powers worldwide confirms that qualified pilots over age 59 continue to fly safely. The FAA has not identified a single airliner accident attributable to the age of a pilot.‘ The FAA's inflexible policy of denying all age exemption requests is the epitome of arbitrariness. The FAA's decision, denying the petitioners' request for exemption from the age 60 rule, was arbitrary and failed to meet the test of substantial evidence. 4 The FAA's final brief, filed with the United States Court of Appeals for the District of Columbia Circuit, is repreduced in the Appendix at page 129a. 14 Il. A lower court judgment, deferring to a regulatory agency's misrepresentation of both the factual record and the nature of the cause of action, should be reversed. The Administrative Procedures Act, 5 U.S.C. § 706 provides that the reviewing court, in determining whether to set aside an agency action, "shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." Persons harmed by an agency action have a right of judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967). Persons harmed by an agency's dissemination of questionable data are entitled to their day in court (Tozzi v. U.S. Dept. of Health and Human Services, 271 F.3d 301, 307 (D.C. Cir. 2001). No judicial deference is owed to the FAA's authority when the government's own data suggests the contrary (U.S. Air Tour Ass'n v. FAA, 298 F.3d. 997, 1018 (D.C. Cir. 2002). The courts owe no deference to an agency that misrepresents material facts. The Judgment of the United States Court of Appeals for the District of Columbia Circuit in this case appeared to be based on little more than a reading of the first page of the FAA's disingenuous argument. It adopted the government's factually incorrect claims - that petitioners had provided no specific information showing why the requested exemptions would not adversely affect safety, and that the petitioners had challenged the legal validity of the age 60 rule, 14 C.F.R. § 121.383(c). As outlined above, the record shows that the pilots' petition to the FAA provided extensive specific information showing why the requested exemptions would not adversely affect safety. Furthermore, the petitioners plainly did not challenge the legal validity of the age 60 rule, 14 C.F.R. § 121.383(c). As cited above, and as the record plainly shows, the 12 pilots petitioned, in accordance with 15 49 US.C. § 44701(f), for lawful exemption from the concededly valid rule. Relevant facts and law were expounded to the United States Court of Appeals for the District of Columbia Circuit in the Final Brief for the Petitioners (reproduced in the Appendix at page 56a); an Amicus Curiae Brief by the Southwest Airline Pilots Association (reproduced in the Appendix at page 194a); and the Petitioners’ Amended Petition for Rehearing En Banc (reproduced in the Appendix at page 29a). By deceptively equating the pilots' request for exemptions to a legal challenge to the validity of the regulation, the FAA induced the court below to deny the pilots a hearing based on the facts and the law. Judgment based on fallacy fails. CONCLUSION The Federal Aviation Administration should be required to decide petitions for exemption on the merits, not on the basis of an arbitrary policy. The agency should be required to base its practices on relevant facts and law, not falsified data. It should be required to disclose, not misrepresent, the purposes of its policies. If rigid enforcement of the age 60 rule ever served any valid purpose (a doubtful proposition at best), it certainly outlived its usefulness long ago. Stereotypical images of 60-year-olds that commonly were accepted in our society in the 1950s are no justification for arbitrary actions by a federal agency in the 21st century. Technology, medicine, and aviation have advanced. 16 Our understanding of the duty of government officials in a democracy to tell the truth and follow the law also, hopefully, has advanced. The elected representatives of the people, who enacted the statute allowing for exemptions, expressly provided for exemptions to be granted in the public interest. (49 U.S.C. § 44701(f).) For these reasons, and for the other reasons set forth above, the Judgment of the United States Court of Appeals for the District of Columbia Circuit should be reversed. The petitioners should be granted the exemptions requested. Alternatively, the case should be remanded so that their requests for exemption may be decided individually on the merits, and not subject to an arbitrary policy of denial. Respectfully submitted, ANTHONY P. X. BOTHWELL Counsel of Record Law Offices of Anthony P. X. Bothwell 350 Bay Street, Suite 100PMB314 San Francisco, CA 94133-1947 Tel. (415) 370-9571 Counsel for Petitioners TABLE OF CONTENTS Judgment of The United States Court of Appeals for the District of Columbia Circuit entered September 24, 2004 ..........::ssssesseseessnseneeneenneens la Denial of Exemption of the Federal Aviation Administration entered October 6, 2003...........ssssscssssesserseeseeeeseeseesees 3a Order of The United States Court of Appeals for the District of Columbia Circuit Re: Denying Petitioners’ Petition for Rehearing En Banc entered December 14, 2004 ..........:scssssssssssssnsnenenenenens 28a Petitioners’ Amended Petition for Rehearing With Petition for Rehearing En Banc in The United States Court of Appeals for the District of Columbia Circuit entered November 18, 2004 .........-s:ssssssessssesessnseneneees 29a Final Brief for Petitioners in The United States Court of Appeals for the District of Columbia Circuit entered Jume 14, 2004 ........eccsssessenenesesrsnsnesenerenensensnes 56a Final Reply Brief for Petitioners in The United States Court of Appeals for the District of Columbia Circuit entered Jume 14, 2004 ........ccecsseseeneneseereeserenserensnennes 106a iia Final Brief for the Respondent in The United States Court of Appeals for the District of Columbia Circuit entered June 8, 2004.......sseceseseceessseeeenssestensenessnenenes 129a Amicus Curiae Southwest Airlines Pilots Association’s Brief Supporting Petitioners in The United States Court of Appeals for the District of Columbia Circuit entered March 29, 2004.........scsscssesseesesseseeessesensees 194a Petition to the Federal Aviation Administration, With Amendments, entered August 20, 2003.........:ssssssessssseseersnseneesereess 207a la United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 03-1386 September Term, 2004 Dallas E. Butler et al., Petitioners, Vv. Federal Aviation Administration, Respondent. On Petition for Review of an Order of the Federal Aviation Administration. Before: EDWARDS, HENDERSON and GARLAND, Circuit Judges. [JUDGMENT (ENTERED: SEPTEMBER 24, 2004] This cause was considered on the record from the Federal Aviation Administration (FAA) and on the briefs by counsel. The petitioners, who are licensed and certified pilots over age 60, seek review of an FAA order denying their applications for exemption from the “Age 60 Rule,” 14 C.E.R. § 121.383(c), which prohibits a pilot from serving on a commercial airplane after his 60th birthday. Although the petitioners purport to seek an “exemption,” the petition lacks specific information to justify exempting the individual petitioners as required under the FAA regulations. See 14 CF.R. § 11.61 (“You must include the following information in your petition for an exemption...The reasons why granting the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equal to that 2a provided by the rule from which you seek the exemption....”). It is plain from the petitioners’ arguments before the agency and before the court that they initiated this proceeding in order to challenge directly the validity of the rule itself, which is properly effected only through a petition for rulemaking rather than a petition for exemption. See 14 C.F.R. §§ 11.61, 11.73; see also Yetman v. Garvey, 261 F.3d 664, 668-69 (7th Cir. 2001); Keating v. FAA, 610 F.2d 611, 612 (9th Cir. 1979); Rombough v. FAA, 594 F.2d 893, 897 (2nd Cir. 1979). Accordingly, it is ORDERED that the petition for review is denied. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. Per Curiam FOR THE COURT: /s/ Mark J. Langer, Clerk 3a Exemption No. 8141 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591 In the matter of the petition of BUTLER, DALLAS E. ET AL for an exemption from § 121.383(c) of Title 14, Code of Federal Regulations Regulatory Docket No. FAA-2002-12501 DENIAL OF EXEMPTION [ENTERED: OCTOBER 6, 2003] By petition received on June 13, 2002, Mr. Anthony P. X. Bothwell, Esquire, Attorney for Petitioners, 100 First Street, Suite 100 PMB241, San Francisco, California 94105- 2632, petitioned the Federal Aviation Administration (FAA) on behalf of Dallas E. Butler et al for an exemption from § 121.383(c) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit the petitioners to act as pilots in operations conducted under part 121 after reaching their 60t birthdays. The petitioners request relief from the following regulation: Section 121.383(c) prescribes, in pertinent part, that no person may serve as a pilot on an airplane engaged in operations under this part if that person has reached his 60% birthday. da The petitioners support their request with the following information: The petitioners claim the Age 60 rule has no medical or safety basis, instead, petitioners assert the Age 60 rule was originally adopted as an act of favoritism and continues to be supported by the FAA as an economic favor to the airline industry. Petitioners allege the FAA has intentionally misrepresented the justification for the Age 60 rule to the public, Congress, Federal courts, and other executive agencies. Petitioners claim they are entitled to be exempt fromthe Age 60 rule because the rule has no medical or safety basis and, therefore, granting them an exemption to the rule will not adversely affect safety. Petitioners allege prior to the issuance of the Age 60 rule in 1959 there was no medical or safety basis for the rule. Petitioners allege the true purpose for the Age 60 rule was a personal favor between FAA Administrator Elwood Quesada and American Airlines Chairman C.R. Smith. Petitioners claim that the Age 60 rule was adopted because American Airlines Chairman Smith contacted Administrator Quesada to request the FAA adopt a mandatory retirement tule to settle an ongoing pilot strike. Petitioners assert the FAA continues to enforce the Age 60 tule so that airline companies will not be burdened with any administrative costs that may be associated with having to change retirement policies currently based on the age of 60. Petitioners cite correspondence between a former Federal Air Surgeon and a former FAA employee and a closed meeting between a congressman and FAA officials as evidence of this economic conspiracy. Petitioners allege the FAA intentionally insulated itself from independent administrative review by adopting the Age 60 5a rule as an operational restriction under section 601 of the Federal Aviation Act of 1958 (now codified at 49 U.S.C. § 44701). Petitioners allege the FAA purposefully did not locate the Age 60 rule under section 602 of the 1958 FAA Act (now principally codified at 49 U.S.C. § 44703) as a licensing restriction that would be reviewed by the National Transportation Safety Board. Among the many allegations leveled by the petitioners against the FAA are the following concerning studies in support of the Age 60 rule: the FAA continues to intentionally and purposefully fabricate and disseminate false and misleading data to support the rule and the FAA distorted data and endorsed and promoted flawed studies to support the rule; the FAA has ignored expert panel reports that disprove medical arguments supporting the rule; the FAA has refused to collect data, make data available that has been collected, or analyze data that has been collected that would undermine the Age 60 rule. Petitioners contend the FAA's reliance on ore particular allegedly flawed study in support of the Age 60 rule, the Flight Time Study, conducted by Richard Golaszewski, constitutes intentional misrepresentation by the FAA to Congress and the U.S. Court of Appeals for the Seventh Circuit. Finally, petitioners allege the U.S. Senate Committee on Appropriations ordered the FAA to conduct a study in a 2000 appropriations bill. The petitioners allege that there is "evidence of the FAA's intent - perhaps even its complicity with the [Senate Appropriations] Committee - to mislead."! Petitioners allege pilot incapacitation poses no threat to safety in air operations and therefore there is no justification for the FAA "no exemptions" policy regarding the Age 60 rule. Petitioners claim two systems that prevent accidents when there is an incapacitation are the manual lock 1 See Petition at 35. 6a shoulder harness and the two-communication rule. According to petitioners, even though pilots have died on the job, not a single air carrier accident has been reported in the literature as caused by pilot incapacitation since the two- communication rule and the manual lock shoulder harness were adopted by industry in the early 1970s. Petitioners also cited studies which compute the risk of pilot cardiovascular failure at 1 in 20.8 million flight hours and a risk of accident in multiple crew air carrier flight operations to be 1 in 8.3 billion flight hours. Petitioners allege the FAA has ignored this factual record which proves that pilot incapacitation in air carrier operations poses no risk to safety. Petitioners allege when the FAA considers granting exemptions to the Age 60 rule, it does not consider that performance and medical checks eliminate at-risk pilots. Petitioners claim one such performance check is the multiple crew system where a back-up pilot can fly the aircraft if a PIC becomes incapacitated. Petitioners contend the FAA recognized the effectiveness of multiple or back-up pilots in airline operations during congressional testimony and ina 1969 study co-authored by former Federal Air Surgeon P.V. Siegel. In addition, petitioners claim the FAA has never denied its ability to diagnose illness in older individuals and to be able to identify pilots that are unfit for duty. Petitioners claim the FAA has also recognized the superior health and fitness of airline pilots as compared to the general U.S. population. Petitioners also assert that the FAA did not enforce the Age 60 rule against foreign pilots flying into the United States until 15 years after the International Civil Aviation Organization adopted the Age 60 rule. Petitioners claim the granting of these waivers is additional evidence of the FAA's true purpose of the Age 60 rule, airline scheduling and economics. ; ee o. ~~ 7a Petitioners also claim that because the Age 60 rule has no safety basis, the rule is inherently discriminatory and, therefore, violates the Age Discrimination in Employment Act (ADEA). Petitioners claim this argument is distinct from past claims of age discrimination because past claims did not argue the rule has no safety basis, past claims argued even if the rule was based on safety, it violated the ADEA. Petitioners claim the FAA's rigid enforcement of the Age 60 rule forces airlines to aggressively recruit military pilots, thus creating a shortage of military pilots. Relaxing the FAA's no-exemptions policy will help the military retain combat-ready pilots, which is a priority, particularly in times of national emergency. On September 10, 2002, the FAA published a summary of the petition in the Federal Register seeking public comment for a period of 2 weeks. On October 2, 2002, a more detailed summary of the petition was published in the Federal Register and the comment period was extended to October 14, 2002. The FAA also received correspondence from Mr. Bothwell concerning a number of administrative matters, including a dispute as to the second summary of the petition published on October 2, 2002. Mr. Bothwell was concerned that the summary of the petition that he provided was not published in the Federal Register. The second summary of the petition published in the Federal Register on October 2, 2002, more accurately described the petition than the summary Mr. Bothwell provided. The published summary paraphrased and quoted from the petition that Mr. Bothwell filed. Mr. Bothwell has noi demonstrated how not using his summary has in any way affected public notice of the petition. In addition, the entire petition filed, along with every comment submitted, has been and is available to the public online. The Web address for the online version of the petition was included 8a in both notices in the Federal Register. The FAA received over 6,700 comments. Finally, the FAA is not required to publish the summary of a petition for exemption submitted by a petitioner or his or her representative, pursuant to 14 C.F.R. § 11.81(f). Mr. Bothwell's summary of the petition was conclusory and it was the FAA's position that publishing his summary could have misled the public to believe the FAA was admitting to the allegations in the petition. Summary of Comments: The overwhelming majority of commenters favor retaining the current Age 60 rule. Safety and medical issues were most often cited as the reasons for retention of the current rule. Numerous commenters stated there is medical information to support the Age 60 rule and before any change is considered, there needs to be extensive medical study in this area to prove that a change is warranted. Safety concerns of commenters included concern over irregular hours and long hours that take a toll on any pilot and many younger pilots and check airman stated they observed fatigue and a deterioration of mental skills and snap judgment in pilots close to age 60. In addition, some commenters stated since safety is the paramount consideration and the public does not choose which pilot flies their aircraft, the FAA should keep the Age 60 rule for the benefit of the general public. Some commenters advised that many pilots encounter serious medical problems soon after retirement due to airline pilot job stresses and evidence of this is in the sick leave records of flight engineers over the age of 60. The vast majority of comments received for this petition for exemption did not address the medical condition of these ten petitioners. Instead they commented on whether the FAA should keep, remove, or withdraw the Age 60 rule. Comments were solicited to provide the public an 9a opportunity to comment on the petition and to receive information as to whether these ten individual petitioners should be granted an exemption from 14 CFR § 121.383(c). Many commenters stated they either support or oppose the FAA granting of an exemption to the ten petitioners. However, few commenters provided specific substantive information concerning the ten petitioners to assist the FAA in deciding if these ten petitioners should be granted an exemption to the Age 60 rule. Many commenters stated changing the rule to bring back older pilots would not make economic sense given the financial troubles of airlines. Some commenters stated the public is focused on the safety of flight after the events of September 11, 2001, and permitting older pilots to fly in Part 121 operations would give the public one less reason to fly. Many commenters stated changing the Age 60 rule would disrupt the retirement plans of many airline pilots that are based on the age of 60. Many commenters do not believe the Age 60 rule is discriminatory, they believe safety overrides any discrimination. Some commenters also pointed out that there are minimum age requirements to become an airline pilot and that the FAA must choose some retirement age and age 60 is as good as any other. A vast number of pilots commented that there is no shortage of pilots given that many thousands of pilots have been furloughed since the events of September 11, 2001. Many furloughed pilots pleaded that the FAA not change the Age 60 rule, because increasing the age above 60 would delay any chance they have at getting back their airline pilot job. Many commenters stated that the vast majority of pilots and airlines are in favor of the Age 60 rule. Commenters also 10a stated that petitions such as the one considered here originate from a vocal minority within the pilot community that understood the retirement system when they were hired by an airline but failed to plan their retirement accordingly and now seek to change the rule for the minority's financial gain, not for safety. Commenters that support changing the Age 60 rule most often cited economics as the basis for the Age 60 rule. Some commenters stated the Age 60 rule is based on economics as a favor to the airlines, terminating the most senior and expensive pilot salaries. Some commenters stated they or pilots they know are experiencing financial difficulty because of the rule and they should be able to work as a pilot in Part 121 operations to the traditional social security retirement age of 65. Commenters stated airline flights are less safe without older pilots because older pilots are more experienced and are sharper than younger, less safe pilots. Also, some commenters argue medical checks can weed out unsafe pilots. Finally, some commenters stated safety cannot be the basis of the rule because many other countries permit airline pilots to fly beyond age 60. Some commenters argued the Age 60 rule is age discrimination. Some commenters stated the Age 60 rule violates U.S. age discrimination laws and it is ironic that the Government that adopts age discrimination laws also practices such discrimination. Some commenters who are pilots argued that the Age 60 rule should be abolished because there is currently a shortage of pilots in the airline industry, including a shortage of pilots in certain regions. lla The Southwest Airlines Pilots' Association (SWAPA) commented that the petition for exemption should be granted because the Age 60 rule is discriminatory and refuted by medical research. SWAPA also commented that there is no credible evidence to support the Age 60 rule and physicals and simulator checks are adequate to screen at- risk pilots. The Air Line Pilots Association, International (ALPA) commented that the petition should be summarily denied because the petition does not meet the requirements the FAA adopted in the 1995 Disposition of Comments. ALPA commented that the Age 60 rule has been thoroughly studied, and repeatedly reaffirmed by the FAA and Federal Courts of Appeals. ALPA also commented that the petition offers no basis for reconsidering the Age rule, that each point in the petition has been addressed and rejected on repeated occasions. In regard to the origin of the Age 60 rule, ALPA commented that the FAA has reviewed the rule three times, finding each time the rule is well-founded, and the FAA's findings were upheld each time by a Federal Court of Appeals. ALPA commented that the petition offers no evidence to support the claim that the Age 60 rule is maintained as a favor to airline executives. ALPA commented that the FAA has devoted a substantial amount of time and resources to the Age 60 rule, and the FAA has conducted a significant amount of research concerning the Age 60 rule. ALPA commented that there is no evidence that authors of accident studies intentionally skewed results to support the Age 60 rule and that two appellate courts rejected criticisms of FAA use of the Golaszewski study. ALPA commented that the petition's allegation that the 1981 National Institute on Aging Panel Report disproved the medical justification is not true, the report recommended retaining the Age 60 rule and extending the rule to Part 135 operations. ALPA commented that sudden pilot incapacitation and subtle cognitive impairment are topics 12a the FAA have found to be a safety risk and ALPA agrees with the agency's conclusions. Also, ALPA stated that performance and medical checks do not adequately screen at-risk pilots as the petition argues. ALPA commented that the FAA found that the Age 60 rule does not violate the Age Discrimination in Employment Act and the United States Court of Appeals for the District of Columbia Circuit upheld that decision. ALPA also commented that there currently is no shortage of pilots for Part 121 operations, in fact as of September 30, 2002, 5,000 pilots represented by ALPA were furloughed. The Professional Pilots Federation commented that the origin of the Age 60 rule stems from ex parte contacts between a former administrator and an airline chief executive officer. They state there is no independent study that they are aware of that states some retirement age is necessary. Wright State University commented that more than three dozen countries allow airline pilots to fly past Age 60, which they state contributes to air safety. The university also states that life expectancy in the United States has increased since the rule was enacted and, therefore, the public and pilots are living longer. The Federal Education Association, Inc. commented that it could see no basis for requiring retirement at the age of 60. It also commented that pilots over the age of 60 are permitted to fly into the U.S. while United States pilots cannot. The American Association of Retired Persons commented that the FAA continues to adhere to a rule that was adopted in 1959 to insure the highest level of safety despite over 40 years of medical and technological developments and a growing trend among foreign aviation authorities to allow pilots over age 60 to fly. It also commented that the FAA 13a has yet to attempt to obtain medical or performance data on older pilots while claiming such data is needed before any change to the rule can be considered. Finally, hundreds of commenters just simply stated they are for or against a change to the rule, with no explanation of why the rule should remain or be changed. A brief history of the Age 60 rule: — The "Age 60 Rule" was adopted by the FAA in 1959 (24 FR 9767, December 5, 1959). The history and basis of the rule are set out in detail in a Disposition of comments and notice of agency decisions, 60 FR 65977 (December 20, 1995), corrected, 61 FR 24533 (May 15, 1996). Since adoption, the basis of the rule has been upheld in at least three cases, see PPF v. FAA, 118 F.3d 758 (D.C. Cir. 1997); O’Donnel v. Shaffer, 491 F.2d 59 (D.C. Cir. 1974); Air Line Pilots Association International v. Quesada, 276 F.2d 892 (2nd Cir. 1960); and exemption petitions have been unsuccessful in at least eight cases, see Yetman v. Garvey, 261 F.3d 664 (7th Cir. | 2001); PPF v. FAA, 118 F.3d 758 (D.C. Cir. 1997); Baker v. FAA, 917 F.2d 318 (7th Cir. 1990); Aman v. FAA, 856 F.2d 946 (7th Cir. 1988); Gray v. FAA, 594 F.2d 793 (10th Cir. 1979); Rombough v. FAA, 594 F.2d 893 (2nd Cir. 1979); Keating v. FAA, 610 F.2d 611 (9th Cir. 1979); Starr v. FAA, 989 F.2d 307 (7th Cir. 1978). Congress has also had the opportunity to reevaluate the Age 60 rule during the past 43 years. For example, in February of 2001, a bill to increase the Age 60 rule to age 65 was referred to the House Subcommittee on Aviation.? In March of 2001, a bill to increase the Age 60 rule to age 63 was drafted to be reported by the Senate Committee on Commerce, Science, and Transportation. Neither of those two bills was enacted. 2 See H.R. 448, 107% Congress. 3 See S.361, 107% Congress. l4a In a 1997 appropriations bill, the National Transportation Safety Board was appropriated a specific sum of money to conduct a study of the Age 60 rule. When the bill was finally passed by Congress, however, an amendment was added prohibiting the NTSB from spending any appropriated money to study the rule.‘ Also, in the 1995 Disposition of comments, the FAA decided to deny future Age 60 rule petitions for exemptions without first publishing the petition for comment if the petition does not contain a proposed technique to assess an individual pilot's abilities and risks of subtle and sudden incapacitation.’ This process was upheld by the United States Court of Appeals for the District of Columbia Circuit.* While the current petition does not contain a new technique to assess an individual pilot's ability and risk of incapacitation, the petition presents a unique, albeit not new, challenge to the Age 60 rule, in the form of a petition for exemption, on which the FAA gave the public an opportunity to comment. Petition for Exemption Standards: Factors that the FAA considers when evaluating a petition for exemption include whether the petitioner can show why granting the exemption will be in the public interest, how the exemption would benefit the public as a whole, and why granting the exemption will not adversely affect safety, or * See Department of Transportation and Related Agencies Appropriations Bill, p177, Report 104-631, June 19, 1997; Department of Transportation and Related Agencies Appropriations Bill, p179, Report 104-325, July 19, 1996. 5 See 60 FR 65980. ® See Yetman v. Garvey, 261 F.3d 664, 679 (7th Cir. 2001). 15a how the exemption will provide a level of safety at least equal to that provided by the rule from which the petitioner seeks an exemption.” Moreover, Congress specified in subpart III of Part A to Subtitle VII to Title 49 of the US. Code that the Administrator may grant exemptions from FAA regulations if such exemptions are in the "public interest." See 49 U.S.C. § 44701(f). In setting forth criteria for the Administrator to carry out her duties under Subpart III of Part A to Subtitle VII of Title 49 of the U.S. Code, Congress required the consideration of several things to be in the "public interest." 49 U.S.C. § 40101(d). But of the several items listed for consideration of what the public interest is in any particular matter, Congress stated that "(1) assigning, maintaining, and enhancing safety and security [are]..the highest priorities in air commerce." 49 U.S.C. § 40101(d)(1). Thus, although there may be many things that are arguably in the "public interest," the Administrator is statutorily required to consider in any rulemaking action (including petitions for exemption from rules) the highest priority in air commerce is to assign, maintain, and enhance safety and security. Petitioners have not met the standards for an exemption to the Age 60 rule under 49 U.S.C. §§ 40101(d)(1) and 44701(f) and 14 CFR § 11.81(d) and (e). Petitioners attack the basis of the rule instead of providing medical evidence as to each airman, scientific studies, or new scientific protocols that would justify an exemption. As the United States Court of Appeals for the Seventh Circuit stated in a case involving a petition for exemption, that included many of the same allegations attacking the Age 60 rule, the validity of the Age ? See 14 C.F.R. § 11.81(d) and 11.81(e). l6a 60 Rule has already been affirmed.8 In a petition for exemption, the petitioners bear the burden of showing that circumstances justify exemptions from the Age 60 rule, a heavy burden where daunting issues of public safety are implicated.? Petitioners fail to present any facts that would justify an exemption to the Age 60 rule for these ten individuals. The only facts given concerning these petitioners are their names, birth dates, and addresses. Petitioners present no facts that uniquely qualify them for an exemption to the Age 60 rule as opposed to many similarly situated pilots. Without further medical information regarding these petitioners and without a medical protocol that can reliably predict which over age 60 pilot will experience detrimental age decrements, the petitioners have failed to present any evidence upon which an exemption might legitimately be based. Instead of presenting information that would support an exemption from the rule, the petitioners challenge the basis of the Age 60 rule and the FAA's conduct in defending the rule. Such allegations do not meet the requirements for a petition for exemption. These allegations do not meet the requirements for a petition for rulemaking. The FAA is responding to the specious allegations petitioners raise regarding the FAA's conduct over the past 43 years defending the Age 60 rule. The petition is denied because the petitioners failed to provide any information that supports an exemption from the rule. 8 Yetman, at 668-669; See also, ALPA v. Quesda, 276 F.2d 892, 898. The rule was first upheld when the Air Line Pilots Association claimed Administrator Quesada had no reasonable basis for exercising his judgment, the court held there is considerable support for the Administrator's action. See id. 9 Id. at 669. 17a FAA Response to Petitioners Allegations: Petitioners allege that the agency has participated in an economic conspiracy to justify the Age 60 rule. These allegations are without merit. The allegations petitioners present in this petition for exemption are not factually based; instead they are based on far-reaching theories, and are completely without merit. The petitioners present no significant new information that has not been presented in prior petitions for exemptions or petitions for rulemakings. In each proceeding, where these same arguments were raised, the FAA denied the petition and various U.S. Courts of Appeals upheld the FAA's denials. The Age 60 rule and the justifications for the rule have been subjected to repeated FAA review and judicial review over the entire 43-year history of the rule. Congress has had the opportunity to revisit the Age 60 rule. In addition, the FAA, other Federal agencies, and private institutions have conducted numerous studies to examine the Age 60 rule. Allegations of favoritism in the adoption of the Age 60 rule were raised in earlier proceedings before the FAA and challenges to FAA determinations in three cases before two United States Courts of Appeal.!° The basis of this assertion is a letter from C.R. Smith, president of American Airlines when the Age 60 rule was adopted in 1959, to Administrator Elwood Quesada, suggesting there must be some suitable 10 See Brief of Petitioners, page 23, United States Court of Appeals for the Seventh Circuit, Yetman v. Garvey, February 20, 2001. (Yetman Brief); Brief for Petitioners, page 4, United States Court of Appeals for the District of Columbia Circuit, Professional Pilots Federation, et. al., May 22, 1996. (PPF Brief); In the matter of Professional Pilots Federation, Jerry |. Fielding, and James C. Rosater, Petition for Writ of Mandamus, pages 7- 8, United States Court of Appeals for the Seventh Circuit, November 25, 1994 (PPF Writ of Mandamus); Yetman Petition for Exemption, Docket no. FAA 2000-8016, p52-53 (Yetman petition); Comments of the Professional Pilots Federation on Proposed Rulemaking as it Relates to Age Limitations for Pilots, pages 2-3, Docket no. FAA-1995-28154-1531; Comment of Bert M. Yetman, Docket no. FAA-1995-27264. 18a age for mandatory airline pilot retirement." This and other documents purportedly supporting this allegation have been submitted to the FAA and to U.S. Courts of Appeals in at least two different petitions for exemption from the age 60 rule.12 In response, the FAA denied allegations of favoritism!’ and U.S. Courts of Appeals have refused to reconsider the validity of the Age 60 rule, upholding the rule in several cases for over 40 years.14 The FAA denies allegations of favoritism in regard to either the adoption of the Age 60 rule in 1959 or during its longstanding defense of the rule. At the time the rule was adopted, the FAA _ followed standard rulemaking procedures by giving the public an opportunity to comment on the proposed rule. Claims by petitioners that the Age 60 rule was adopted as a personal favor to the president of an airline company are completely without merit. There was nothing inappropriate in adopting the Age 60 rule as an operational restriction under section 601 of the 1958 Act as opposed to an airman certification provision under section 602 of the Act. There are many operational 11 See Petition for Exemption, Dallas Butler et. al., Exhibit C, docket number FAA-2002-12501-1 12 See Yetman Brief Joint Appendix 87, 88; PPF Brief Joint Appendix 618. 13 See Disposition of comments and notice of agency decisions, 60 FR 65984. 14 See Yetman v. Garvey, 261 F.3d 664, 668-9 (7 Cir. 2001) stating the court is not reexamining the validity of the Age 60 Rule, as it was already affirmed in Starr v. FAA; PPF v. FAA, 118 F.3d 758, 770 finding the FAA's decision not to convene rulemaking to revise the Age 60 rule was not arbitrary and capricious; Aman v. FAA, 856 F.2d 946, 954 (7t Cir. 1988) stating that petitioners have not produced sufficient evidence of ex parte communications to meet the heavy burden required to overturn an agency action; Starr v. FAA, 589 F.2d 307, 309 (7 Cir. 1978) stating the court will not reexamine the validity of the Age 60 rule, as the rule has already been affirmed; O’Donnel v. Shaffer, 491 F.2d 59, 62-63 (D.C. cir. 1974); ALPA v. Quesada, 276 F.2d 892, 898 (24 Cir. 1960). restrictions and requirements in part 121 that do not have a corresponding airman certification provision. That is because the level of safety required for part 121 operators is higher than other operations, and, thus, the tolerance for risk is lower. Although pilots who are 60 years of age or older may operate under other parts of the regulations (e.g. parts 91 and 135) such operations do not have to meet the more demanding safety requirements imposed on part 121 operators. The Age 60 rule was adopted as an operational rule because Age 60 carves out a limited restriction prohibiting airman from operating aircraft under part 121. An airman certification restriction would be an overly broad measure for this rule and would require revoking and reissuing an airman's certificate at age 60, a matter that is more appropriately handled as an operational restriction. The petitioners' allegations that the FAA has refused to collect data concerning the Age 60 rule is simply untrue. In addition, the FAA does not restrict the type of data it collects concerning the Age 60 rule. The FAA collects data neutrally, regardless of whether some claim certain data may support or undermine this rule. In the latest petition for exemption before the U.S. Court of Appeals for the Seventh Circuit, the court found "We find the FAA, in accordance with our directive [from a prior petition for exemption] has kept abreast of and considered new studies and medical technology."!5 In fact, the FAA has posted four reports concerning Age 60 on its website, at the address: http://www.cami.jccbi.gov/ aam-400A/AGC60/60_index.html. These reports were created in part in response to the U.S. Senate Committee on Appropriations order to study the Age 60 rule in a year 2000 appropriations bill. The first report is an extensive annotated bibliography of the Age 60 rule debate covering the years 1990 to 1999. The second report is a re-analysis of a 15 Yetman v. Garvey, 261 F.3d at 678. 20a 1999 Chicago Tribune Report that analyzed accident and incidents data from 1990 to 1999. The third report is an analysis of professional air transport pilot accident rates by age for the years 1988 to 1997. The fourth report is an analysis of professional ATP and commercial pilot accident rates by age for the years 1988 to 1997. Petitioners criticize the method of analysis used in the fourth report, however, the FAA conducted the study pursuant to the direction of the Appropriations Committee and the results of that study showed an increasing risk for pilots over the age of 60. Petitioners also claim that the FAA _ intentionally misrepresented information concerning studies (including the Flight Time Study) that support the Age 60, this allegation is completely false. This same argument has been raised in a petition for exemption’® and raised in two challenges of FAA exemption denials before the U.S. Court of Appeals for the Seventh Circuit.!” In both cases, the Seventh Circuit recognized that the Flight Time Study was not perfect, but ultimately upheld the FAA's decision to deny petitions for exemption and upheld the use of the 16 See Yetman Petition for Exemption, Docket No. FAA-2000-8016 at page 3, stating "the FAA has pursued a course of deception for many years in order to retain a rule that cannot be justified medically or operationally. As one example, FAA sought to deceive the Court in Baker v. FAA, 917 F.2d 3 18 (7th Cir. 1990), by claiming in that litigation that the "Flight Time Study" justified the denial of exemptions, when it knew at that time that the study was hopelessly flawed and did not support any conclusion. Under recognized standards of administrative law, the exemptions should be granted." See also Id. at 40. 17 See Yetman Brief for Petitioners pages 31, 32 stating "...FAA's Kenneth Chin has revealed that FAA knew from the start that the Flight Time Study had 'major data deficiencies' and could not be used 'to support any position’ (J.A. 15), proving that it had been foisted upon the Court in a duplicitous agency effort to conceal its fatal defects (see J.A. 15, 359)."; Baker Brief for Petitioners pages 9-17 stating the FAA's reliance on the Flight Time Study to support the Age 60 rule is fatally flawed, and if the flaw is removed from the study, the study supports granting a petition for exemption. 2la Flight Time Study as substantial evidence supporting the validity of the Age 60 rule.18 In the latest case upholding of an FAA petition for exemption denial the court states: Petitioners have failed to explain how the FAA's awareness of the deficiencies in the Flight Time Study —incidentally, a fact that we were aware of in Baker—impacts our substantial evidence inquiry. Yetman at 677 (emphasis in original). The issue of whether pilot incapacitation poses a risk to air carrier safely has also been repeatedly raised by petitioners! and examined by the FAA in prior petitions. In prior petitions concerning Age 60, the FAA determined that both sudden and subtle incapacitation create risks to air safety and experience of older pilots do not compensate for lost faculties. Recently, the court in Yetman agreed with the FAA, finding that the petitioners in that case did not provide, as was their burden, strong evidence that the added experience of pilots 60 and over clearly neutralizes the danger of sudden incapacitation and deterioration of piloting skills associated with the aging process.2! Petitioners evidence in the present petition is no less than a decade old, once again providing no new evidence to support their claims and certainly not meeting the standard described by the court in Yetman, as requiring strong evidence to support their claims. 18 See Yetman, 261 F.3d at 676, 677; Baker, 917 F.2d at 322. '9 See Yetman petition for exemption pp 19, 27 (65 FR 59496); PPF petition for rulemaking p13 (58 FR 46585). 20 See Yetman denial pp 8-9, 19-20; PPF denial 60 FR 65983. 21 See Yetman at 678. 22a The purpose of requiring safety systems and procedures such as multiple pilot crews and the Age 60 rule is to provide redundant safety measures, so that if one safety mechanism fails another is in place. However, some risk exists even with what appear to be redundant safety mechanisms. Thus, although part 121 operations require the presence of at least two pilots, the safety benefit of having two pilots would be diminished if one of those pilots were age 60 or older. That's because there is a higher chance that the age 60 or older pilot will suffer an incapacitating event, including an insidious incapacitating event (not noticeable to other crewmembers) or might have a decrement in cognitive functioning or reaction times that would not be timely caught and corrected by the other pilot. The petitioners claim that the FAA does not consider performance and medical checks to eliminate at-risk pilots when examining a petition for exemption. This claim is without merit. The FAA considered medical testing in recent petitions and found that the medical tests and protocols did not provide the same level of safety as the Age 60 rule and this finding was upheld by court decisions.” For instance, the Yetman petition for exemption proposed a medical protocol, albeit a protocol substantially similar to past protocols submitted to the FAA, that in the petitioners view could identify pilots medically qualified to operate airline pilot duties beyond age 60.” In a detailed analysis of petitioner's protocol, the FAA found the protocol did not provide a level of safety equal to the level of safety under the Age 60 rule In addition, the FAA found there continues to be cognitive disorders for which there are no diagnostic tools on which we can rely. Similarly, the FAA 2 See Yetman at 675-6; Yetman denial p17-18; Aman at 954; Aman denial p13; 23 See Yetman petition p2. 24 See Yetman denial p18. 23a found the medical protocol submitted in the Aman and Baker petitions to be inadequate. The courts in each case upheld the FAA decision.” In the current petition, no medical protocol whatsoever was submitted; instead petitioners claim the FAA can diagnose and eliminate at-risk pilots through current first-class airmen medical examinations. However, the FAA and courts have held that first-class airmen medical examinations and any medical protocol so far submitted to the FAA are inadequate to screen at-risk-pilots and do not provide the same level of safety as the Age 60 rule. The courts have already spoken as to the FAA's analysis of protocols and the courts disagree with the petitioners.”” Petitioners claim that use of simulators can screen at-risk pilots has also been raised in recent petitions for exemption’ and addressed by the FAA in denying those petitions.? As discussed in the FAA's denial of the Yetman petition: -..periodic proficiency and competency checks are intended to detect a pilot's performance deficiency and to correct those deficiencies before the pilot is returned to flight operations. These checks only verify the state of a pilot's performance at the time of the checks. They are not useful for detection of early or subclinical cognitive defects that may subtly degrade performance or which, in time, may progress to risks for 5 See Aman denial p13; Baker denial p32. 26 See Yetman at 675-6;Aman at 954 27 See id. 28 See Yetman petition at pp 2, 22, 29; Aman petition at pp 3, 31-32. 29 See Yetman denial at p20; Aman denial at p13-14. 24a errors in judgment or other actions that may jeopardize safety. The checks do not predict whether an individual pilot's performance will degrade at any time in the future with aging. Yetman denial p20. The FAA made the same finding in the 1995 Disposition of Comments™ and the U.S. Courts of Appeals for the District of Columbia Circuit upheld the FAA's determination: We conclude that the FAA afforded adequate consideration to the alternative of individualized testing. The FAA explained that even state-of-the-art testing cannot screen out potentially risky pilots. PPE v. FAA 118 F.3d at 674. Nothing has been presented to the FAA in this petition which warrants the FAA altering its determination with regard to the use of simulators to screen at-risk pilots; simulators are a beneficial tool for testing a person's present piloting ability and identifying any current deficiencies in that person's piloting skills. However, the FAA found no evidence that simulators are an adequate screen to identify future pilot deficiencies including subtle insidious cognitive deterioration. Therefore, the use of a simulator as a medical screen would not be a thoroughly effective tool to identify current medical problems with an airman and would not be an effective tool to predict which older pilots will shortly manifest medical problems in flight. There is no dispute that older people have higher incidences of medical problems in general and higher incidences of insidious/ subtle cognitive deficits than younger people. 30 See 1995 Disposition of Comments at 60 FR 65983-65984. Petitioners also claim the FAA did not enforce the Age 60 rule against foreign. pilots flying into the United States; however, under FAA regulations there is no Age 60 rule in Part 129, the part that governs operations of foreign air carriers and foreign operators of U.S. registered aircraft. While the ICAO standard was not enforced at its inception, the policy at the time recognized the international ramifications of insisting on compliance with international operating requirements. In any event, the United States worked through the difficult complexities and has for quite some time now insisted on Age 60 compliance by part 129 operators of "large" aircraft in the United States. Petitioners once again raise a claim that the Age 60 rule violates the ADEA, even though the FAA has successfully defended the rule on that basis twice, having one U.S. Courts of Appeals hold that the ADEA does not apply to the FAA and another court recognize that holding.>! Petitioners attempt to distinguish this claim from past claims by arguing that the Age 60 rule has no safety basis and therefore is inherently discriminatory. That claim is inconsistent with case law and findings made in cases where *! See PPF denial at 60 FR at 65985 stating "The FAA agrees that limitations based on age are to be avoided if possible. However, safety in air transportation is paramount. As discussed above, the FAA has not found a way to acceptably evaluate the inevitable deterioration that occurs with age. Considering that the consequences of a pilot's subtle or sudden incapacitation potentially are so severe, the FAA has determined that at this time safety requires the Age 60 Rule to remain unchanged."; Yetman denial at p27 stating "While the ADEA does not apply to the FAA's regulation of pilots, PPE, 118 F.3rd at 770, the FAA does take cognizance that no group of people should be treated differently than others unless there is a valid reason for doing so. As discussed above, the FAA has determined that there are important safety considerations that lead the FAA to denying the petition for exemption."; PPF v. FAA at 762- 763; Yetman v. FAA at 668, FN1, recognizing the PPF decision finding the ADEA does not apply to the FAA. | 26a the PPF itself was a party.*? As case law holds, the ADEA does not apply to the Age 60 rule. Congress has had the opportunity to revisit both the Age 60 dispute and the ADEA after these significant decisions. Congress has not seen fit to amend the ADEA in any way that would nullify the FAA's Age 60 rule. Finally, petitioners claim that currently, there is a pilot shortage, which may affect the war against terrorism because military pilots are leaving the military to join airline companies, is not true. Currently there is no shortage of airline pilots, in fact, airlines are furloughing thousands of pilots in response to the economic and travel industry slump since the events of September 11, 2001. Evidence of these furloughs lies in the number of airline pilots who commented on this petition stating they did not want the Age 60 rule to be changed because they and many of their colleagues are furloughed. Thousands of furloughed pilots submitted comments of this nature. In addition, the Air Line Pilots Association (ALPA) comment to this docket stated that 5,000 of the 65,000 pilots represented by ALPA are on furlough.* In addition, as in past petitions that raise this same argument, the FAA notes that changing the Age 60 rule would not have an impact on the number of pilots leaving military service or the number of pilots in the airline industry. 32 We note that while the PPF is not listed on the petition for exemption the FAA received on June 13, 2002, the petition is located on the PPF website with PPF letterhead and the attorney representing these ten petitioners signs his correspondence with the FAA as "Attorney for the Professional Pilots Federation." 33 See Comments of the Air Line Pilots Association, International, p18-19, docket no. FAA-2002-12501-6622. ee 27a In consideration of the foregoing, I find that a grant of exemption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of Butler, Dallas E. et al for an exemption from 14 CFR § 121.383(c) is hereby denied. Issued in Washington, DC, on October 6, 2003 [s/ John M. Allen Acting Director Flight Standards Service 28a United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 03-1386 September Term, 2004 Dallas E. Butler, et al., Petitioners v. Federal Aviation Administration, Respondent BEFORE: Ginsburg, Chief Judge, and Edwards, Sentelle, _ Henderson, Randolph, Rogers, Tatel, Garland, and Roberts, Circuit Judges ORDER [ENTERED: DECEMBER 14, 2004] Upon consideration of petitioners’ petition for rehearing en banc, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Michael C. McGrail Deputy Clerk 29a RECORD NO. 03-1386 CASE DECIDED WITHOUT ORAL ARGUMENT PURSUANT TO CIRCUIT RULE 34(j) In The Gnited States Court of Appeals For Che Bistrict of Columbia Circuit DALLAS E. BUTLER, et al., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent. ON PETITION FOR REVIEW FROM THE FEDERAL AVIATION ADMINISTRATION PETITIONERS DALLAS E. BUTLER et al. AMENDED PETITION FOR REHEARING WITH PETITION FOR REHEARING EN BANC Anthony P. X. Bothwell James R. Klimaski LAW OFFICES OF Lynn I. Miller ANTHONY P. X. BOTHWELL KLIMASKI & ASSOCIATES, P.C. 350 Bay Street 1819 L Street, N.W. Suite 100 PMB314 7th Floor San Francisco, California 94133 Washington, D.C. 20036 (415) 370-9571 (202) 296-5600 Counsel for Petitioners Counsel for Petitioners Dated: November 18, 2004 THE LEX GROU P°C 1750K Street, NW ¢ Suite 475 ¢ Washington, DC 20006 (202) 955-0001 ¢ (800) 815-3791 ¢ Fax: (202) 955-0022 ¢ www. 30a CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES CERTIFICATE OF COUNSEL REQUIRED BY D.C. CIR. RULE 28(a)(1) (A) PARTIES AND AMICI The 12 parties who petitioned the Federal Aviation Administration, and who petition for rehearing and rehearing en banc, are: Dallas E. Butler Tom Gamble Jeannie C. de Lamos Paul Turner III Alan J. De Sa Arthur B. Ward Woodrow M. Hassinger Rudy Mack, Sr. Joe R. McCabe Philip N. Nash Michael L. Oksner William M. Siegel The Southwest Airlines Pilots Association (SWAPA) filed an amicus curiae brief in support of the pilots’ petition for review. No intervenors or other amici are identified in this matter. (B) RULINGS UNDER REVIEW The judgment of the panel, upon which rehearing and rehearing en banc is petitioned, was issued by this Court September 24, 2004. The ruling at issue in this Court is an Order by John M. Allen, Acting Director, Flight Standards Service, Federal niet hides te “ 3la Aviation Administration, United States Department of Transportation, Docket No. FAA-2002-12501-6781, issued on October 9, 2003. A copy of that Order is attached to the Petition for Review of Agency Order that the petitioners here filed October 30, 2003. The Order was announced in Summary Notice No. PE-2003-74, at 68 Fed. Reg. 69761, 69764 (Dec. 15, 2003). (C) RELATED CASES The case under review was not previously before this Court or any other court. No other related cases are currently pending in this Court or any other court of which counsel is aware. /s/ Anthony P. X. Bothwell ANTHONY P. X. BOTHWELL Law Offices of Anthony P. X. Bothwell 350 Bay Street - Suite 100 PMB314 San Francisco, CA 94133-1966 Tel. (415) 370-9571 JAMES R. KLIMASKI LYNN I. MILLER Klimaski & Associates, P.C. 1819 L Street, N.W. - 7th Floor Washington, DC 20036 Tel. (202) 296-5600 Attorneys for Dallas E. Butler, et al., Petitioners ee ae 32a TABLE OF CONTENTS PAGE CERTIFICATE AS TO PARTIES, RULINGS AND i i A I snes acinltarsadgesiaiben ne | ADE 2 OR CITING cscs ccscanscscansccnannosvoosoncisnsensuandosannsnnanll ii TABLE OF ALTTEROMRIT IIR, ccccscccoscssscesessecoccaconssecorsononssssanssssors iv : STATEMENT OF GROUNDS FOR | REHEARING AND REHEARING EN BANC ........:ssssssssss 1 | sy oannilacutaaeinideiaeammnniedsiin 3 ei Ts ss asdaeeinooseunanaianes 15 CERTIFICATE OF FILING AND SERVICE | ADDENDUM | : | | ee ee ee ee —— 33a TABLE OF AUTHORITIES PAGE(S) CASES: Abbott Laboratories v. Gardner, Oe RR Be IIE Biche cin aiiessnietsncesonitidcntccapiicincesictaiasnoniless 1,6 Chlorine Chemistry Council v. E.P.A., Bem TA I, Ce, FI i vecicscancisssinisssssnanseseseanis 7 Lincoln v. Vigil, ie IE I ercicinisainssiscnslacciastiiaubilaiasnsnitinatoniins do Padula v. Webster, le Bae OF COA, CO, TOD) aig csscscescsnsesenses ENT Re io? Sibley Memorial Hospital v. Wilson, Pe We Be es Ms BI iP anisacntnsscaccnscanssrxsiancinnisccic 10 Steenholdt v. F.A.A., OAM Bek GS COC. Car, 2008) ocsecsscssccsscecsnmasnsasscseasasacs ye Tozzi v. U.S. Dept. of Health and Human Services, Mal A TE COs COR, BD a isthsiscntancsinasnsernniadsnindnns 1,6 U.S. Air Tour Ass'n v. FAA, Oe i BFF CK CR, DIE sccasessssssactancssossinssvcassnsnce 1,6 U.S. v. Nixon, . Se MI OR hak anicchascitccchsaiatraaibiacadeipsuihandidenses ALT Yetman v. Garvey, a ce OO Ce, IY scien nsncsesasesnssinsnscbecannund 6 STATUTES AND REGULATIONS: | WOES MOB sccsonvinresconvssisisnsatsstcccnteneiteakeauaieadaeeee WE AN ici aa SUB, BONO assis ctictccscccrrnssataentiddeee WUGL COUN vscsicsiiiccdccnmcpene GP VIG, 0 AOU NI ses ccsstcisiisorcrccnnieniticeoamionaianal PEI 6 NIN osc ccisiciccincoriceimncpuna guna MUBO. CUI oescsrerssiscnicnccrnamonia CRUG C. 0 ON oases sdticavitrncanegenel WORE: CANON ioiiccincsnitcnmamaaanae MUD 6 WIR III ssicesissccnsvrcccstersiensiaaniaaane MPUT GS, GAMO NO icisecicecensscciccascasesasnscnatatannsansa PURO CUI ois ccicicticirmnaeaee SEC CARON iiinsccscccesrcncconnee AS0. SME isi Since USO. 6 OUI ohn inirrinlerenneee 49 USC. § 40101(a)(12) sa eshaeplansecapaaeadeioasaideleaiaiaaaaa SOTIGAS 6 ODI ois i idsnsshinirislndceienmndememda NOC. 6 II oo osoieciscitncsrncememnsmnanaal 35a i 8 49 U.S.C. § 40101(b)(1)(C) eevsescsntsesesssssssssssststsessessee 8,9 49 US.C. § 40101(6)(3) eesccseesesrtestsesststessssisssstuntietseseeseec 8 ee 8 49 US.C. § 40101(d)(i) ccsrseesetsetsesessteetsssssesasisssteseeseee 8 49 US.C. § 40101(d)(2) .ccsseesotntsesetstisetstissississsesseeeseee 8 49 US.C. § 40101 (€)(1) sccsrseesrtntsesntstsetsssssesitsetnteseeseee 8 ne 4 aa cnteinssersiemsaees 2,3 OTHER AUTHORITIES: Commuter Operations and General Certification and Operations Requirements; Air Carrier and Commercial Operator Training Programs; Final Rules; 60 Fed. Reg. 65831 et seq., Dec. 20, 1995 ........ccescessesseee assim Information Quality Act of 2000 (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 te a WO, BUN, BEBR, OG I) cnc sicsccessnssassdnccsnncececnsencs 1,7 Office of Management and Budget, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication; 67 Fed. Reg. 5365 et seq., Feb. 5, 2002.......c.cccssssssessssssesseesseeseeens 1 36a STATEMENT OF GROUNDS FOR REHEARING AND REHEARING EN BANC Pursuant to Circuit Rule 35(b), Petitioners Dallas E. Butler et al. ("the pilots") state that rehearing and rehearing en banc is necessary as to the decision in this case, Dallas E. Butler et al. v. Federal Aviation Administration, No. 03-1386 (D.C. Cir., Sept. 24, 2004), for the following reasons: 1. to secure and maintain uniformity with applicable Supreme Court and circuit authority which mandates that when an agency's reliance on and dissemination of questionable data is harmful, those harmed are entitled to their day in court (Tozzi v. U.S. Dept. of Health and Human Services, 271 F.3d 301, 307 (D.C. Cir. 2001)); that persons harmed by agency action have a right of judicial review (Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967)); and that no judicial deference is owed to FAA's authority when the government's own data suggests the contrary (U.S. Air Tour Ass'n v. FAA, 298 F.3d. 997, 1018 (D.C. Cir. 2002). y to address and resolve three questions of exceptional importance, a. whether the FAA's reliance on concededly false age-safety data in its denial of the pilots' request for exemptions violated mandatory standards established in the Information Quality Act of 2000 (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. No. 106- 554; H.R. 5658) and guidelines pursuant thereto (Office of Management and Budget, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication; 67 Fed. Reg. 5365 et seq., Feb. 5, 2002), in defiance of the rule that, so long as a federal regulation is 37a extant, the Executive Branch is bound by it (U.S. v. Nixon, 418 U.S. 683, 695 (1974)), b. even if the Information Quality Act standards are deemed to be not binding, whether the FAA's denial under its no-exemptions policy failed to meet the "substantial evidence" test according to judicially manageable standards (Steenholdt v. F.A.A., 314 F.3d 633, 638 (D.C. Cir. 2003), Lincoln v. Vigil, 508 U.S. 182, 193 (1993), Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987)), where FAA officials conceded the policy had no safety basis and was intended as a form of economic favoritism, and c whether the FAA's claim of a medical/safety justification for its decades-long refusal to grant even a single exemption from 14 C.F.R. § 121.383(c) ("the age 60 rule"), now is ripe for adjudication. ARGUMENT This case involves 12 pilots who submitted to the Federal Aviation Administration a petition (pet.) fox exemption from 14 C.F.R. § 121.383(c) ("the age 60 rule"), a regulation that bars pilots from flying commercial airliners after age 59. The record shows that the FAA has followed a policy of automatic denial of ali such requests for exemption. The record also shows that this policy never had any safety purpose, and that its only purpose has been supposed economic favoritism for certain interests in the airline industry. In its Response to Petitioners Allegations (at 9- 15)(J.A. 191-197), the FAA gratuitously denied the pilots' charges of FAA favoritism and misrepresentation. The agency did not chillenge the accuracy, relevance or Os admissibility of the evidence presented by petitioners. Undisputed evidence established that the agency intentionally misrepresented both the purpose of its no- exemptions policy and the data that supposedly justified it. The agency, holding all the records of medical fitness and safety performance of the 12 petitioners, never denied the petition's averments that these pilots have unblemished fitness and performance records and are among the safest, ablest pilots in the industry. Where no medical/ safety issues govern, the medical/safety testing protocols demanded by the agency become irrelevant. This is the first case involving the age 60 rule in which the FAA's conduct and culpability are central to the plea. This is the first case in which a broad array of evidence - FAA internal documents, previously secret, as well as extensive publicly available information - on the entire history of the agency's no-exemptions age 60 policy has been proffered in support exemptions. The agency's failure to rebut the evidence seals the proof of the pilots' case. It remains undisputed that (a) these pilots, ages 57 to 67, have unblemished safety performance and medical records; (b) top FAA officials conceded there never was a safety or medical basis for the no-exemptions policy, and that its sole intent was a favor for members of the industry they are supposed to regulate; (c) Europe, Japan and other air powers do not follow an age 60 rule; (d) astronauts, military and cargo pilots and the pilots of Air Force One are exempt from the rule; (e) the FAA has not identified a single airline accident anywhere in the world attributable to pilot age; (f) the age 60 rule is a lawfully valid regulation but of economic, not safety, relevance, and (g) the FAA, pursuant to 49 U.S.C. § 44701(f), has authority in the public interest to grant exemptions from it. —— cc ltt—“—tstsw™OSOOC 39a The court's one-paragraph judgment, rendered after an 11th-hour cancellation of the scheduled hearing, reads as if the panel hardly read past the first page of the FAA's argument. It adopted the FAA's factually incorrect claims that (a) the pilots here challenged the validity of the age 60 rule; (b) safety issues were the basis for the agency's denial of exemptions, and (c) the pilots provided mo specific information showing why the requested exemptions would not adversely affect safety. In fact, the pilots showed that their exemption would not adversely affect safety, not only because they have unblemished medical and safety records, but also because the rule never had anything to do with safety. The pilots did not argue that the rule was invalid, but rather acknowledged that it was a valid regulation while showing its only purpose was economic. By deceptively equating the pilots' request for exemptions to a legal challenge to the validity of the regulation, the F AA induced the panel to deny the pilots their day in court. The pilots now ask the court to remand the case to the FAA for a decision on whether to exempt each of the 12 petitioners, consistent with the record and the law. The same favoritism that gave birth to the age 60 rule also has caused the FAA to ignore safety controls inherent in its overall regulatory system (pet. notes 107-113, 130, 214 and associated text), in rigid adherence to its unwritten policy of automatic denial of all requests for exemptions. The regulation was not invalidated by its secret economic purpose, nor by the fact that the FAA used false data to give it a "safety" spin. But the agency's denial of exemptions lacks legitimacy on account of its reliance on falsified data and its failure to refute the petitioners! evidence. Where there is showing that an exemption would have no adverse effect on safety, the FAA concedes that it has a statutory duty to base its decision on what best will serve the public interest. The FAA's secret presumption that 40a its no-exemptions policy has an economic justification has no more validity than its discredited presumption that the policy has a safety justification. The central facts, concerning the lack of any medical/ safety basis for either the age 60 rule or the FAA's no-exemptions policy, are as follows: The rule was created in 1959 by FAA Administrator Elwood Quesada as a favor for his friend, C. R. Smith, chairman of American Airlines, who had lost a series of labor disputes over the airline's age 60 retirement policy (pet. at 10-14)(J.A. 017-022). FAA lawyers from the outset privately stated there was no evidence that could provide any "scientific or factual justification" for the rule (id. at 14-15)(J.A. 021-022). The National Institutes of Health refuted claims that there was any medical justification for the rule (id. 23-27)(J.A. 030-034). The FAA persisted in publicizing flawed "studies" that grossly distorted data to create a false impression that pilots over age 59 were less safe (id. at 23-24, 57-65, exhibit U)(J.A. 030-031, 064-072, 156-157). The agency was aware of deficiencies in age-safety data on which it relied. Yetman v. Garvey, 261 F.3d 664, 677 (7th Cir. 2001). Fallacies and falsehoods in age-safety data on which FAA has relied has long been well known in the scientific community (id. at 58- 59)(J.A. 065-066). It is undisputed that enlightened airline executives today are opposed to the FAA's no-exemptions policy. It is undisputed that a former FAA Administrator, a former Federal Air Surgeon and other FAA officials admitted that there never was any safety or medical basis for the age 60 rule, and that its sole intended purpose was economic favoritism for members of the industry they are supposed to regulate (id. at 27-28, 55-56)(J.A. 034-035, 062- 063). Using dispositive Supreme Court precedent, this court was required to grant judicial review of the agency's denial of the pilots' request for exemptions. Persons harmed 4la by an agency action have a right of judicial review (Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967). This court was required to follow its own rule, that persons harmed by agency's dissemination of questionable data are entitled to their day in court (Tozzi v. U.S. Dept. of Health and Human Services, 271 F.3d 301, 307 (D.C. Cir. 2001). The court must deal with the merits of the case. Here the presumption of deference to the "expert" agency is overcome by evidence - including formerly secret records from FAA files - revealing there was no safety basis for the no-exemptions policy. The court owes no deference to FAA's "expert" assurances because the government's own data suggests the contrary (U.S. Air Tour Ass'n v. FAA, 298 F.3d. 997, 1018). Government-wide guidelines promulgated by the Office of Management and Budget under the Information Quality Act have the full force of law. So long as a federal regulation is extant, the Executive Branch is bound by it (U.S. v. Nixon, 418 U.S. 683, 695 (1974). The aforesaid Information Quality guidelines of 2002 were in force when the FAA on October 6, 2003 denied the pilots' request for exemptions. On its face, the order denying exemptions made no attempt to comply with these congressionally mandated guidelines. The order denying the requested exemptions was dictated by an unwritten no-exemptions policy founded on distorted and falsified data - the antithesis of standards of scientific validity mandated by the guidelines. The FAA order, which failed to comply with applicable law, must be found invalid. Even if the Information Quality guidelines were found not to be binding, this court still must find the order invalid because it fails the "substantial evidence" iest. According to the rule of this circuit, the measure of "substantial evidence" is found in judicially manageable standards. Steenholdt v. F.A.A., 314 F.3d 633, 638 (D.C. Cir. 2003. See also Chlorine Chemistry Council v. E.P.A., 206 sows 42a F.3d 1286, 1290-91 (D.C. Cir. 2000). Judicially manageable standards are to be found in regulations. Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). Even if the guidelines were not per se binding, nevertheless they supplied standards judicially manageable for the purpose of defining arbitrary and capricious conduct, abuse of agency discretion, and insubstantial evidence. Judicially manageable standards also are to be found in statutes that circumscribe agency discretion Lincoln _v. Vigil, 508 US. 182, 193 (1993). Congress has ordered such standards in statutes that circumscribe FAA's discretion in deciding whether to grant the exemptions sought by the petitioners here. Congress has mandated that the FAA, in deciding whether to grant the exemptions, "shall consider" the following as being in the public interest: - The requirements of national defense and commercial aviation (49 U.S.C. § 40101(c)(1)); - Regulating air commerce in a way that best promotes safety and fulfills national defense requirements (49 US.C. § 40101(d)(1)); and - Encouraging and developing civil aeronautics (49 U.S.C. § 40101(d)(2)). The pilots have shown conclusively that the rule is not safety-related but rather economic in nature. The FAA, in deciding whether to grant exemptions, has a statutory duty to consider the following additional matters identified in 49 U.S.C. § 40101(a), (b), among other factors, as being in the public interest: 43a Assigning and maintaining safety and security as the highest priority in air commerce (49 U.S.C. § 40101(a)(1)); Preventing deterioration of established safety procedures (49 U.S.C. § 40101(a)(3)); Assuring the availability of adequate service without unreasonable discrimination or unfair or deceptive practices (49 US.C. § 40101(a)(4), (b)(3)); Coordinating transportation by, and improving relations among, air carriers, and encouraging fair wages and working conditions (49 U.S.C. § 40101(a)(5)); Strengthening the competitive position of air carriers to at least ensure equality with foreign air carriers, including the attainment of the opportunity for U.S. air carriers to maintain and _ increase their profitability in foreign air transportation (49 U.S.C. § 40101(a)(6), (a)(15), (e)(1)); Developing and maintaining a sound regulatory system as to the present and future needs of the commerce of the United States and the national defense (49 US.C. § 40101(a)(7), (b)(1)(C)); 44a ~ Preventing unfair, deceptive or predatory practices (49 U.S.C. 5 40101(a)(9)); - Ersuring that consumers in ail regions of the United States, including those in small communities and rural and remote areas, have access to affordable, regularly scheduled air service (49 US.C. § 40101(a)(11), (a)(13)); - Encouraging and developing practices to provide efficiency, innovation and low prices (49 U.S.C. § 40101 (a)(12)). This case should be remanded to the agency for reconsideration in light of the aforesaid non-discretionary, statutory mandates. FAA officials never identified their underlying economic motives beyond vague references to pilot training costs and airline administrative convenience. However, relying on the FAA's past exemptions from the rule, for international pilots and carriers (pet. notes 35, 36, 267 and associated text)(J.A. 013, 073) and domestic pilots and carriers (id., note 259 and associated text); 60 Fed. Reg. 65833, 65843, Dec. 20, 1995), changes in international regulatory policies and practices (id., note 263 and associated text)(J.A. 072), including U.S. treaty obligations, and in light of well-known economic conditions in the domestic airline industry, petitioners proffer the following suggestions as possible exemption practices. On remand, the FAA could, for example: a. limit the exemptions to pilots and/or carriers with demonstrated safety records and/or stable economic balance-sheets (pursuant to 49 U.S.C. § 40101(a)(2), under 45a which the FAA must evaluate the safety implications of new air transportation services). b. limit the exemptions to domestic carriers and operations only (pursuant to 49 U.S.C. § 40101 (a)(7), (b)(1)(C), for developing and maintaining a sound regulatory system as to the present and future needs of the commerce of the United States and the national defense, and consistent with the U.S. treaty obligations as a member of the International Civil Aviation Organization). c limit the exemptions to pilots and carriers serving developing, regional, and secondary markets only (pursuant to 49 U.S.C. § 40101 (a)(8), encouraging air transportation at major urban areas through secondary or satellite airports, consistent with regional airport plans of regional and local authorities). d. limit the exemptions to the same standards adopted by the European Community through its Joint Aviation Authority, ie., age 65 for one pilot in a multi-pilot crew, where at least one other pilot is under age 60 and fully qualified in the aircraft and operations undertaken (pursuant to 49 USC. § 40101(a)(6)(B), to promote international competitiveness of U.S.-based airlines). e. grant broad exemptions to mitigate disparities between the high-cost legacy carriers - most now in or near bankruptcy - and newer, low-cost carriers (pursuant to 49 U.S.C. § 40101 (a)(4), (5), and (6)(A),(B), to promote efficient operations, fair employment, and competitiveness of domestic airlines). The "early" retirement mandate and defined benefit pension plans of the legacy carriers threaten not only the solvency of the carriers but also the solvency of the Pension Benefit Guaranty orporation. Mandatory retirement at age 60 deprives these 46a trust funds of their major interest/investment income while extending payout years. | The exemptions sought here are not orders for employment but rather the removal of a prohibition of employment. See Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1340 (D.C. Cir. 1973) ("Control over access to the job market may reside, depending upon the circumstances of the case," in an entity other than the employer.) Through its age 60 no-exemptions policy, the FAA restricts employment contract opportunities between third parties (pilots and airlines). The employment of exempted pilots would remain subject to all policies, rules, regulations and statutes governing air operations, to ensure the highest possible degree of safety in the public interest. Ironically, 29 U.S.C. § 633a bars the FAA from removing its own pilots from flight duties at age 60, even though they fly the same types of aircraft in the same airspace as air carriers and pilots subject to its no-exemptions policy. The central issue raised in this case - the FAA's claim of a medical/safety justification for its decades-long refusal to grant even a single exemption from the age 60 rule - must be adjudicated on the merits. Both the rule and the no- exemptions policy have been controversial for decades. In its 1995 Disposition of Comments (Fed. Reg. 65977, 65980, Dec. 20, 1995; Disposition of comments and notice of agency decisions), the FAA said more than 100 exemption petitions were pending. In the last decade, four substantantive challenges have clogged calendars of two circuits. The undisputed evidence in the present case shows that the agency's assertion of a medical or safety rationale was never more than a pretext. The record here provides the first serious challenge to the FAA's credibility concerning the purpose and effect of the no-exemptions policy. This case is ripe. 47a This is not the first time that the agency has misconstrued requests for exemption as requests to overturn the regulation. The FAA in 1995, addressing more than 100 petitions for exemptions then outstanding, declared without prior notice or public comment that it would consider no petition for exemption from the rule unless it contained a protocol that would allow the FAA to change the rule itself: The FAA has determined that the petitioners have not shown their circumstances to be unique compared with those who comply with the rule, and that the issues they raise are more appropriately considered in connection with whether the FAA should propose to change the general rule. 60 Fed.Reg. 65977, 65980, id.; Disposition of comments and notice of agency decisions. The disposition's summary explained: This action announces FAA's decisions on a number of issues regarding the FAA's "Age 60 Rule". The issues include: responding to the comments requested in 1993 regarding various aspects of the Age 60 Rule, including the "Age 60 Project, Consolidated Database Experiments, Final Report", and issues raised by pilots seeking exemptions from the Age 60 Rule, issues raised by a petition for rulemaking by the Professional Pilots Federation (PPF), requesting the FAA to remove the Age 60 Rule. Id. at 65977, n. 1. That document examined virtually every aspect of the age 60 debate - history, science, medical and cognitive 48a testing, performance evaluations, statistical studies, operational distinctions, international policies, etc. Rejecting each as a basis for change, FAA made no distinction between standards it would require for a single exemption or for a change to the general rule. The agency said it made no attempt to evaluate economic impacts: "The FAA has not evaluated the economic impact of a proposed change." Id. at 65984. By its circular reasoning, the FAA considers any substantive petition for exemption not as an exemption from the rule, but as a petition for a change in the rule. This court is bound, not by this Kafkaesque policy, but rather by the legal standards discussed above. Multiple waivers, exemptions from the age 60 rule have been granted by the FAA to both foreign and domestic operators and pilots, without requiring any particularized showing of individual characteristics. All were granted on broad claims by requesters, acknowledged by the FAA, based on economic factors. These included direct costs, training amortization costs, pilot hiring/ replacement costs, airline scheduling convenience, etc. Id. The FAA conceded that it is required to consider economic factors in addition to requirements enumerated in 49 U.S.C. § 40101. The agency said: Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic effect of regulatory changes on small entities. Third, the Office of Management and Budget directs agencies to 49a assess the effect of regulatory changes on international trade. Commuter Operations and General Certification and Operations Requirements; Air Carrier ai Commercial Operator Training Programs; Final Rules, V0 Fed. Reg. 65831, 65899, Dec. 20, 1995. By means of a rule change, the FAA imposed stringent equipment, personnel, operational, maintenance, and procedural standards on operators of aircraft having 10 to 30 seats. Id. The standard compliance date for most uf the new standards and procedures was 15 months after publication of the final rule. Waivers, exemptions from compliance, were established for certain elements, some as long as 15 years. Id. at 65849-53. In particular, the age 60 rule was imposed on the operators and pilots of the affected aircraft, but blanket exemptions were extended automatically for four years. The FAA is unable to quantify the costs to operators or to affected pilots. The nature and magnitude of these costs depend upon the alternatives available to each party, which the FAA has been unable to identify in sufficient detail to estimate costs. The FAA believes that the four-year phase-in of this requirement will help to minimize any potential disruptions the rule may cause and that the resulting cost are not likely to be substantial. The FAA also believes that the age 60 requirement is essential to achieve the "one level of safety" goal established by the Secretary of Transportation and that any cost of this requirement is justified by its benefits. Id. at 65902. 50a When the FAA in 1992 extended the dates for its enforcement of the International Civil Aviation Organization version of the age 60 rule in US. airspace against operators and pilots of foreign carriers, the FAA saw no safety issue and granted their exemptions on economic grounds - pilot training costs and the carriers’ administrative convenience. As the pilots' petition told the FAA: When the FAA announced in 1995 that the age 60 rule would be applied starting four years later to most part 135 operations, including pilots, it specifically stated that the reason for this decision was safety data. However, when the International Civil Aviation Organization requested such data in a survey of member nations, the FAA - notwithstanding the fact that most part 135 captains were required to hold the same credentials as part 121 captains, and all part 135 pilots (ci\ptains included) were allowed to y - and many did fly - past age 60 - responded that it had never accessed any such data. FAA told ICAO that such data exists but that FAA did not even know whether it was accessible. Pet. at 63-4 (J.A. 070-071)(emphasis in original) (footnotes omitted). It has been clear for many years that the agency's pilot age policies have been arbitrary. In sum, the panel misread the petition, misconstruing a petition for exemptions as if it were a request to invalidate the underlying regulation, and misinterpreting an economic argument as a safety issue. This court should find, based on the overwhelming evidence in the record, that there was not, and still is not, 5la any medical or safety basis for the FAA's no-exemptions policy. The court should remand the case to the agency, to reconsider the denial,of exemptions according to the criteria mandated by 49 U.S.C. § 40101. CONCLUSION For the foregoing reasons, the panel should rehear the case, and the Court should grant rehearing en banc. /s/ Anthony P. X. Bothwell ANTHONY P. X. BOTHWELL Law Offices of Anthony P. X. Bothwell 350 Bay Street - Suite 100 PMB314 San Francisco, CA 94133-1966 Tel. (415) 370-9571 JAMES R. KLIMASKI LYNN I. MILLER Klimaski & Associates, P.C. 1819 L Street, N.W. - 7th Floor Washington, DC 20036 Tel. (202) 296-5600 Attorneys for Dallas E. Butler, et al., Petitioners 52a CERTIFICATE OF FILING AND SERVICE I hereby certify that on November 18, 2004, I filed with the Clerk's Office of the United States Court of Appeals for the District of Columbia Circuit, via hand-delivery, the required copies of the foregoing Amended Petition for Rehearing with Petition for Rehearing En Banc, and further certify that I served, via UPS Second Day Air transportation, the required copies of same to the following: Edward Himmelfarb Robert S. Greenspan U.S. DEPARTMENT OF JUSTICE Appellate Staff, Civil Division 950 Pennsylvania Avenue, NW Room 7646 Washington, DC 20530 Counsel for Appellant The necessary filing and service upon Counsel were performed in accordance with the instructions given me by counsel in this case. /s/ Kimberly J. Everitt THE LEX GROUP®* 1750 K Street, NW Suite 475 Washington, DC 20006 (202) 955-0001 53a ADDENDUM 54a United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 03-1386 September Term, 2004 Dallas E. Butler et al., Petitioners, Vv. Federal Aviation Administration, Respondent. On Petition for Review of an Order of the Federal Aviation Administration. Before: EDWARDS, HENDERSON and GARLAND, Circuit Judges. JUDGMENT [ENTERED: SEPTEMBER 24, 2004] This cause was considered on the record from the Federal Aviation Administration (FAA) and on the briefs by counsel. The petitioners, who are licensed and certified pilots over age 60, seek review of an FAA order denying their applications for exemption from the “Age 60 Rule,” 14 C.F.R. § 121.383(c), which prohibits a pilot from serving on a commercial airplane after his 60th birthday. Although the petitioners purport to seek an “exemption,” the petition lacks specific information to justify exempting the individual petitioners as required under the FAA regulations. See 14 C.F.R. § 11.61 (“You must include the following information in your petition for an exemption...The reasons why granting the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equal to that 55a provided by the rule from which you seek the exemption....”). It is plain from the petitioners’ arguments before the agency and before the court that they initiated this proceeding in order to challenge directly the validity of the rule itself, which is properly effected only through a petition for rulemaking rather than a petition for exemption. See 14 C.F.R. §§ 11.61, 11.73; see also Yetman v. Garvey, 261 F.3d 664, 668-69 (7th Cir. 2001); Keating v. FAA, 610 F.2d 611, 612 (9th Cir. 1979); Rombough v. FAA, 594 F.2d 893, 897 (2nd Cir. 1979). Accordingly, it is ORDERED that the petition for review is denied. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. Per Curiam FOR THE COURT: /s/ Mark J. Langer, Clerk 56a Oral Argument Scheduled for September 13, 2004 In the United States Court of Appeals for the District of Columbia Circuit No. 03-1386 DALLAS E. BUTLER, TOM GAMBLE, JEANNIE C. de LAMOS, PAUL TURNER III, ALAN J. De SA, ARTHUR B. WARD, WOODROW M. HASSINGER, RUDY MACK, SR., JOE R. McCABE, PHILIP B. NASH, MICHAEL L. OKSNER, and WILLIAM M. SIEGEL, Petitioners, v. MARION C. BLAKEY, Administrator, Federal Aviation Administration, and NORMAN Y. MINETA, Secretary, U.S. Department of Transportation, Respondents. Petition for Review of an Order denying Relief by the Federal Aviation Administration, Department of Transportation, Docket No. FAA-2002-12501-6781, issued on October 9, 2003 FINAL BRIEF FOR PETITIONERS-APPELLANTS 57a JAMES R. KLIMASKI LYNN I. MILLER Klimaski & Associates, P.C. 1819 L Street NW - Suite 700 Washington, DC 20036-3830 (202) 296-5600 ANTHONY P. X. BOTHWELL Law Offices of Anthony P. X. Bothwell 350 Bay Street Suite 100 PMB-314 San Francisco, CA 94133-1966 (415) 370-9571 Attorneys for Petitioners-Appellants June 11, 2004 58a CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES CERTIFICATE OF COUNSEL REQUIRED BY D.C. CIR. RULE 28(a)(1) (A) PARTIES AND AMICI The 12 parties who petitioned the Federal Aviation Administration, and who appeal the agency's decision, are: Dallas E. Butier Tom Gamble Jeannie C. de Lamos Paul Turner III Alan J. De Sa Arthur B. Ward Woodrow M. Hassinger Rudy Mack, Sr. Joe R. McCabe Philip N. Nash Michael L. Oksner William M. Siegel The Southwest Airlines Pilots Association (SWAPA) anticipates filing an amicus curiae brief in support of this petition. No intervenors or other amici have been identified in this matter. (B) RULINGS UNDER REVIEW The ruling at issue in this Court is an Order by John M. Alien, Acting Director, Flight Standards Service, Federal Aviation Administration, United States Department of Transportation, Docket No. FAA-2002-12501-6781, issued on October 9, 2003. 59a A copy of that Order is attached to the Petition for Review of Agency Order that the petitioners here filed October 30, 2003. The Order was announced in Summary Notice No. PE-2003-74, at 68 Fed. Reg. 69761, 69764 (Dec. 15, 2003). (C) RELATED CASES The case under review was not previously before this Court or any other court. No other related cases are currently pending in this Court or any other court of which counsel is aware. TABLE OF AUTHORITIES BASIS FOR JURISDICTION STATEMENT OF ISSUES STATEMENT OF THE CASE STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT I II. Il. 60a TABLE OF CONTENTS Revised after entry of Appendix Citations THE AGENCY IN ITS DECISION RELIED ON INFORMATION THAT FAILED TO MEET CONGRESSIONALLY MANDATED Se PE iviisensiniciceniesinsibiancbtinhienteicaamiesiantiniaitnn THE AGENCY DID NOT BASE ITS DECISION ON SUBSTANTIAL EVIDENCE ........ THE RECORD AS A WHOLE JUSTIFIES REJECTING THE CREDIBILITY OF THE PA. 0 OF a asicienenemiinincnnnninbiniiins THE AGENCY DECISION WAS UNWARRANTED IN LIGHT OF FACTS SUBJECT TO THIS COURT'S DE NOVO REVIEW UNDER THE APA.....................ccccssccceseee POOH ESO HOSTESS ESTEE SEHESEEEEETER OEE ESESS SPOOR ESTEE EEE EEE ESE SESE TEESE SEER ESSE EEE EEE EEEEEEEEEEEEEEEE EEE EES SPO SE TEESE HEE EERE ECE EEE EEE EHESEEESEEEEE EEE EES EES SOCCER EEE SEES TEESE SES EEEEEEO STE ESESESEEREEES SPR OH REESE ESE RESTS ESSE OEE EES SPREE REESE EEE EEE SEES EEE EEE EOE EEE EEEEE SEE EEEEEEEEEE EEE ET EEEOHESE SES EE SEE EEES 6la THE AGENCY DECISION WAS ARBITRARY, AN ABUSE OF DISCRETION, AND LACKING IN GOOD FAITH ...... ee eeeeeeeee: 19 THE AGENCY DECISION WAS CONTRARY TO EQUAL PROTECTION OF THE LAWS THE AGENCY DECISION WAS CONTRARY TO DUE PROCESS OF LAW THE FAA SHOULD NOT AUTOMATICALLY GROUND 59-YEAR- OLD PILOTS WHO MEET ALL APPLICABLE MEDICAL, PERFORMANCE AND SAFETY STANDARDS CONCLUSION CERTIFICATE OF COMPLIANCE STATUTORY AND REGULATORY ADDENDUM 62a TABLE OF AUTHORITIES Revised after entry of Appendix Citations CASES, STATUTES, AND OTHER AUTHORITIES Note: Appellants have marked the authorities upon which they chiefly rely with asterisks. Cases Agosto v. Immigration and Naturalization Service, 436 ee FOI ie eee 20 ALPA v. Quesada, 276 F.2d 892 (2nd Cir. 1960) .....sssssssssssseeen 17 Aman v. FAA, 856 F.2d 946 (7th Cir. 1988)....s:cssssssssssssssssssesee 16 *Association of Data Processing Service Organizations, Inc. v. Board of Governors, 745 F.2d 677 (D.C. Cir. RI veccsniosiniscssisnsctonsnsisieicisbishiniaistsipiisicnaiciasipenlatenetalaneiaiiadinens 12,19 Baker v. FAA, 917 F.2d 318 (7th Cir. 1990).............ccccccsscesscsesese 7 Breeden v. Weinberger, 493 F.2d 1002 (4th Cir. 1974)............. 13 Besghe o. Gait, SSE UTS. SR GI) ciscsicscinsinnssininniclaanssiainistinsaicetansion 20 Dept. of Transportation, Federal Highway Admin. v. LOG. TAO BB TO CA, I csi ctertivtiosimnitioncicny 10 Gables by the Sea, Inc. v. Lee, 498 F.2d. 1340 (5th Cir. FFD ssccisenciiisnsivcsascieepniiisiavienschacthassctpieianaldinenidaiasaiaipiedaumpadineeia 17 Gray v. FAA, 594 F.2d 793 (10th Cir. 1979) ......ccscssscsseseseesesees 16 Haley, Bader & Potts v. FAA, Civil No. 85-1943, Dist. Ct., D.C., filed Jun. 15, 1985; final order dated Jun. 27, *Izaak Walton League of America v. Marsh, 655 F.2d 346, SA: ars STII UIE Ds criceiccecscenscesesassscconesesecsnsesonsescosiscescncscses 8 Keating v. FAA, 610 F.2d 611 (9th Cir. 1979) 00.0... eececeseseseseeeees 16 Lawrence v. Texas, 123 S.Ct. 2472 (2003) ........ccccccssscessseseseeeseees 18 Modica v. U.S., 518 F.2d 374 (Sth Cir. 1975)......cesesesessesesesees 18 NLRB v. Payless Cashway Lumber Store, Inc., 508 F.2d I SI IITA sshcirtchceecenduntenssnnscebéecostoesectensceuscccsecssosecseese 13 Natural Resources Defense Council, Inc. v. SEC, 606 I ID ITI occ ctctnnscnactsnccecnanseseensssescsonuscesseees 9, 22 *New York Times Co. v. U.S., 403 U.S. 713 (1971) .......c.cecceseees 10 O'Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir. 1974) ......cceeceeee. 17 Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J., cota canaachseahptnsnesenanecensesanscstesceteseetceesseescesseceneee 21 Professional Pilots Federation (PPF) v. FAA, 118 F.3d 2. SERRE ERS aoe 16, 17 Port Norris Exp. Co., Inc. v. I.C.C., 687 F.2d 803 (3rd SNE I tai tUisaiadiceltaieinataenasseadntntinccaceestevntsesescocececceresenssoverensees 10 Rombough v. FAA, 594 F.2d 893 (2nd Cir. 1979)............s0000 6, 16 Sierra Club v. Hardin, 325 F.Supp. 99 (D.C. Alaska ae adaaeieesaheieeetcstnatesatesenstsnesescnsecsssnsceceseoscesesecevsesvieceseesecceece 17 *Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) ...........000 20 Starr v. FAA, 589 F.2d 307 (7th Cir. 1978)............cccsssesssseeseeees 16 64a *Steadman v. SEC, 450 US. 91 (USB) ...ccccresarscessssscsccossnsasssssses 10 Town & Country Elec., Inc. v. N.L.R.B., 106 F.3d 816 CEL UG, BIG P sivcnsicsnnnsiisinneinnaniiaigittoisiaasibinigeinbidiusijitiibiennialenianiiiinitiae 13 *Udall v. Tallman, 380 U.S. 1 (1965)............. seonensanandenensesiecaasacnesiee 9 Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) ............ 10 CLS. o. Dela, GEE ES. Ge i irccetacrnstntesnisiniontnnistansiionvtiipens 12 Yetman v. Garvey, 261 F.3d 664 (7th Cir. 2001)............. 7, 10, 16 Statutes SS UA, BF a isicinssihadcsiensasasicinipaicniniianapaemitts ined 19 TS UG, GF iiciecineniniinintismneaaisttainhscbiialegapibaniiaiinntaininiaiaag 10 SD CEA & Pep cies sesiinincininsecticihinetilatiinarnipliielalaibiaaaiiaatiah 17 i ie Fh ee sisinccseis ici icesdisisncecipieinslaenianiptinatcmitalonsonaediaiian 9 EF AEG, Be Oe ID etsceesinsnssctenerconntbintnnetiinloniniinige 6, 10 See RL aR ee 1, 4,6 BD TA, BR Oe asin csietisinistenajntainaietinadlecanciniacinavinininn 1 PC. C.F, SG, Be ee Cr Piictcrctnernccienicanesnencsnsnsssoniiniotaen 8 Regulations BGG a BSA ericitchcendiniicieinciinieeisditaianeniddiaeiiain 19 *14 C.F.R. § 25.1523, 1525; Appendix D to Part 25, CN RG cic sine tieshtbcsleninancsieanastll sine 15 a ie Oy ae I eininetectatnntcestnhiecinciheniiitdnsinnnennadioninsa 23,6 67 Fed. Reg. § 8455-8459 (Feb. 22, 2002)...........:.sssssssseseeeeees 8, 16 FAA System Safety Handbook § 3.4.........cssssssssssssssssessseesseees 12 Other Authorities James Madison, Speech in the House of Representatives (June 8, 1789), reprinted in Papers of I: PUMiy TOU scinensnisisisatincnnitiossiionstissinenininledaiienseanandenmsdacnnonsitin 21 Notice of Proposed Rule-making, Maximum Age Limitations for Pilots, 24 Fed. Reg. 5247 (Jun. 27, BOTY siscsdietosciasialebsichissesncdahateitsesihcuabtenisignighiinsicstisticaiatniannanshaitine 11 Statement by 60 leading scientists including 20 Nobel laureates, quoted in [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0631%3A1. Public record. Not legal advice.